Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B. (c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C. (d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D. (e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E. (f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date. (i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter. (j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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. (l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request. (m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (J M SMUCKER Co), Underwriting Agreement (J M SMUCKER Co)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxSidley Austin LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersletter, dated the Closing Date or settlement date (as applicable) and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.A hereto.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the its Chief Executive Officer or the and its principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements in all material respects and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect or Sponsor Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ie) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP WithumSmith to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate or settlement date (as applicable), letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate or settlement date (as applicable), in form and substance reasonably satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain 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 Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, or in the business or properties operations of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lg) Prior to the Closing DateDate or settlement date (as applicable), the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mh) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Unit Purchase Agreement, the Administrative Support Agreement, the Insider Letter and the Registration Rights Agreement.
(k) On or prior to the Closing Date or settlement date (as applicable), the Company shall have caused the applicable purchase price for the Private Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Public Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxx, Xxx XxxxXxxxxx-Xxxxx Xxxxx, Xxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx Xx, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Gaming & Hospitality Acquisition Corp.), Underwriting Agreement (Gaming & Hospitality Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, Xxxx LLP shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall Deloitte & Touche LLP will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent , to the Execution Time or, if earlier, the dates effect that they have performed certain specified procedures as a result of which they have determined that such information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably requestrequest of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(md) The Securities Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been listed rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and admitted and authorized for trading on the New York Stock Exchange“Aaa” by Xxxxx’x Investors Service, and satisfactory evidence of such actions Inc. (“Moody’s”). The Class M-1 Certificates shall have been provided to the Underwriterrated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. If any of the conditions specified in this Section 6 The Class M-2 Certificates shall not have been fulfilled when rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and as provided 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 Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date “Aa2” by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writingMoody’s. The documents required to be delivered Class M-3 Certificates shall have been rated “AA-” by this Section 6 S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLPhave been rated “A+” by S&P, counsel for the Underwriter“A+” by Fitch, 000 Xxxxxxxxx Xxxxxx“A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, Xxx Xxxx“A+” by Fitch, Xxx Xxxx 00000“A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, on the Closing Date.“A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Samples: Underwriting Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2006-4)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Kxxxxxxx & XxxxExxxx LLP, counsel for the Company, to have furnished to the Underwriter Representative its opinion and negative assurance letters, opinions dated the Closing Date and addressed to the Underwriterany settlement date, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Companyapplicable, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the UnderwriterRepresentative, substantially in a form reasonably acceptable to the form attached hereto as Exhibit C.Representative.
(dc) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Mxxxxx and Calder (Cayman) LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter Representative its opinion, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the UnderwriterRepresentative, substantially in a form reasonably acceptable to the form attached hereto as Exhibit D.Representative.
(ed) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter Representative shall have received from Xxxxx Xxxx Cravath, Swaine & Xxxxxxxx Mxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the UnderwriterRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter Representative may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter Representative a certificate of the Company, signed by the Chairman of the Board or the its Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Mxxxxx to have furnished to the Underwriter Representative, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the UnderwriterRepresentative.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the UnderwriterRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing Date, and any settlement date, as applicable, the Company and the Selling Stockholder shall have furnished to the Underwriter Representative such further information, certificates and documents as the Underwriter Representative may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock Exchange, and satisfactory evidence of such actions which shall have been provided to the UnderwriterRepresentative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter Representative and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the UnderwriterRepresentative. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Xxxxx Xxxx Cravath, Swaine & Xxxxxxxx Mxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 800 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Cxxxx X. Xxxxxxx, Nxxxxxxx X. Xxxxxx and Mxxxxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (World Quantum Growth Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxxxxx & Xxxxx & XxxxLLP, counsel for the Company, to have furnished to the Underwriter Representative its opinion and negative assurance letters, opinions dated the Closing Date and addressed to the Underwriterany settlement date, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Companyapplicable, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the UnderwriterRepresentative, substantially in a form reasonably acceptable to the form attached hereto as Exhibit C.Representative.
(dc) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxxxx and Calder (Cayman) LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter Representative its opinion, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the UnderwriterRepresentative, substantially in a form reasonably acceptable to the form attached hereto as Exhibit D.Representative.
(ed) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter Representative shall have received from Cravath, Swaine & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the UnderwriterRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter Representative may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter Representative a certificate of the Company, signed by the Chairman of the Board or the its Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Xxxxxx to have furnished to the Underwriter Representative, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the UnderwriterRepresentative.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the UnderwriterRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing Date, and any settlement date, as applicable, the Company and the Selling Stockholder shall have furnished to the Underwriter Representative such further information, certificates and documents as the Underwriter Representative may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock Exchange, and satisfactory evidence of such actions which shall have been provided to the UnderwriterRepresentative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and $10.10 per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter Representative and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the UnderwriterRepresentative. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Cravath, Swaine & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Xxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (World Quantum Growth Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained Trust set forth herein as of the Execution Time Closing Date, and if applicable, as of the Option Closing Date pursuant to Section 3 hereofDate, as the case may be, to the accuracy of the statements of the Company Offerors' directors and the Selling Stockholder made in any certificates pursuant to the provisions hereofofficers, to the performance by the Company and the Selling Stockholder Trust of their respective obligations hereunder hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Underwriter:
(a) The Prospectus, Registration Statement and any supplement thereto, all post-effective amendments thereto shall have been filed declared effective by the Commission no later than 5:30 p.m. Eastern Time, on the date of this Agreement, or such later time as shall have been consented to by the Underwriter, but in any event not later than 5:30 p.m., Eastern Time, on the manner and within third full business day following the date hereof; if the Offerors omitted information from the Registration Statement at the time period required by it became effective in reliance on Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) 430A under the Act Securities Act, the Prospectus shall have been filed with the Commission within in compliance with Rule 424(b) and Rule 430A under the applicable time periods prescribed for such filings by Rule 433Securities Act; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use amendment or supplement thereto shall have been issued and issued; no proceedings proceeding for that purpose the issuance of such an order shall have been instituted initiated or threatenedshall be pending or, to the knowledge of the Offerors or the Underwriter, threatened or contemplated by the Commission; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Underwriter and complied with to the Underwriter's satisfaction.
(b) The Company Preferred Securities, the Guarantee, and the Subordinated Debentures shall have requested and caused Wachtellbeen qualified or registered for sale, Liptonor subject to an available exemption from such qualification or registration, Xxxxx & Xxxx, counsel for under the Company, to Blue Sky Laws of such jurisdictions as shall have furnished to been reasonably specified by the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to offering contemplated by this Agreement shall have been cleared by the Underwriter, substantially in the form attached hereto as Exhibit B.NASD.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, Since the dates as of which information is given in the Registration Statement Statement:
(exclusive of any amendment thereofi) and the Prospectus (exclusive of any amendment or supplement thereto), there There shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in the ability of the Company or affecting the managementany Subsidiary to conduct their respective business (whether by reason of any court, condition (financial legislative, other governmental action, order, decree, or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.general
Appears in 1 contract
Samples: Underwriting Agreement (American Bancshares Inc \Fl\)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Firm Shares and the Option Shares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any subsequent settlement date (solely with respect to the Option Shares) pursuant to Section 3 hereofhereof (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxx & XxxxXxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion Underwriter, at the request of the Company, their written opinions and 10b-5 statement, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit D.B hereto.
(ec) The Selling Stockholder Underwriter shall have requested received the opinion of Xxxxxxxx and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPWedge, counsel for the Selling Stockholder, to have furnished opining as to the Underwriter its opinion dated the Closing Datelaw of Nevada, addressed to the Underwriter and substantially dated the Closing Date, to the effect set forth in the form attached hereto as Exhibit E.C hereto.
(fd) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx on and as of the Closing Date or the Option Closing Date, as the case may be, an opinion and 10b-5 statement of Proskauer Rose LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related such matters as the Underwriter may reasonably requirerequest, and the Company and the Selling Stockholder such counsel shall have furnished to such counsel received such documents and information as they may reasonably request for the purpose of enabling to enable them to pass upon such matters.
(ge) On or before the execution of this Agreement, the Underwriter shall have received from NSA a letter addressed to the Underwriter in the form and substance reasonably satisfactory to the Underwriter containing statements and information with respect to the oil and gas reserves of the Company and its subsidiaries and of the COP Assets as reported in the Disclosure Package and the Final Prospectus, and, as of the Closing, such letter shall not have been withdrawn by NSA or amended by NSA in any material respect.
(f) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or Board, the President and Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Shares, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hg) The Selling Stockholder At the time of the execution of this Agreement, KPMG LLP shall have furnished to the Underwriter a certificateletter, signed by an authorized representative of dated the Selling Stockholder reasonably acceptable to counsel date hereof and addressed to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing DateUnderwriter, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter delivered shall use a “cut-off” date no more than three (3) business days prior to the date hereof.
(j1) At the time of the execution of this Agreement, Ernst & Young LLP shall have furnished to the Underwriter a letter, dated the date hereof and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter delivered shall use a “cut-off” date no more than three (3) business days prior to the date hereof; and (2) on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Underwriter shall have received a bring-down comfort letter from Ernst & Young LLP addressed to the Underwriter and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package and the Final Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriter concurrently with the execution of this Agreement pursuant to this paragraph (h)(1) of this Section 6.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or 6, (ii) any changeMaterial Adverse Effect or (iii) any action taken or law, statute, rule, regulation or order enacted, adopted or issued, or any development involving a prospective changeissuance of an injunction or order, in by any federal, state or affecting the managementforeign governmental or regulatory authority, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i), (ii) or (iiiii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(623(a)(2) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Securities Shares shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNYSE, and reasonably satisfactory evidence of such actions shall have been provided to the Underwriter or counsel for the Underwriter.
(l) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company set forth on Schedule IV hereto, addressed to the Underwriter, which shall be full force and effect on the Closing Date and any Option Closing Date, as the case may be.
(m) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates (both of officers and various secretaries of state evidencing good standing), opinions and documents as the Underwriter may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. In connection with the purchase of any Option Shares on any settlement date, references to the “Closing Date” in this Section 6 shall instead refer to such settlement date. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Proskauer Rose LLP, counsel for the Underwriter, 000 Xxxxxxxxx XxxxxxEleven Times Square, Xxx XxxxNew York, Xxx Xxxx 00000N.Y. 2012 at 10:00 a.m., EST, on June 18, 2012 on the Closing DateDate for review by the Underwriter or Proskauer Rose LLP.
Appears in 1 contract
Samples: Underwriting Agreement (Endeavour International Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofin this Agreement, to the accuracy of the statements of the Company and the Selling Stockholder made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder under this Agreement and to the following additional conditionsconditions applicable to the Offered Notes:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted instituted, or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel knowledge of the Company, threatened by the Commission.
b) Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Underwriter) shall have furnished to the Underwriter her an opinion or opinions, dated the Closing Date Date, in each case in form and addressed substance reasonably satisfactory to the Underwriter and counsel for the Underwriter, substantially in the form attached hereto as Exhibit C.relating to certain enforceability, securities law and security interest matters.
(dc) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio In-house counsel for each of the Company, to Company and GE Capital shall have furnished to the Underwriter its an opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed in form and substance reasonably satisfactory to the Underwriter and substantially in counsel for the form attached hereto as Exhibit E.Underwriter.
(fd) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx XxXxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the UnderwriterDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageOffered Notes, the Prospectus (together with any supplement thereto) and such other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they the Underwriter may reasonably request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signatory of such certificate has carefully examined the Program Documents to which the Company is a party, and that:
(i) , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date in all material respects, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
f) Counsel for the Indenture Trustee (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, who shall be satisfactory to the Company’s knowledge, threatened; and
(iiiUnderwriter) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)opinion, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
g) Counsel for the Owner Trustee (j) Subsequent who shall be satisfactory to the Execution Time orUnderwriter) shall have furnished to the Underwriter an opinion, if earlierdated the Closing Date, in form and substance reasonably satisfactory to the dates as of which information is given in Underwriter.
h) Counsel for the Registration Statement Company (exclusive of any amendment thereofwho shall be satisfactory to the Underwriter) and shall have furnished to the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been Underwriter (i) any change opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, relating to certain bankruptcy matters and Federal income tax matters and (ii) a signed negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, relating to the Registration Statement, the Preliminary Prospectus and the Prospectus.
i) The Underwriter shall have received a letter, dated the Closing Date or decrease such other date as may be agreed upon between the Underwriter and the Company, from certified public accountants (who shall be satisfactory to the Underwriter), substantially in the form previously approved by the Underwriter.
j) The Offered Notes shall have received the ratings specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(ml) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided Subsequent to the Underwriter. If any date of the conditions specified in this Section 6 Prospectus, there shall not have been fulfilled when and as provided any material adverse change in this Agreement, the business or if any properties of the opinions Company or GE Capital which in the reasonable judgment of the Underwriter, after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or inadvisable to proceed with the public offering or the delivery of such Offered Notes as contemplated by the Prospectus.
m) On or prior to the date that the Prospectus is filed with the Commission, the Underwriter shall have received evidence reasonably satisfactory to them that CDF and certificates mentioned above or elsewhere the Issuer have (i) executed a Certification as to TALF Eligibility, in this Agreement the form most recently prescribed by the FRBNY under the TALF prior to such date (the “TALF Certification”) and (ii) included such executed TALF Certification in the final Prospectus to be filed with the Commission.
n) The Underwriter shall not be have received evidence reasonably satisfactory to it that CDF and any other applicable entity have executed an Indemnity Undertaking, in the form most recently prescribed by the FRBNY under the TALF prior to such date (the “Indemnity Undertaking”), and have delivered such Indemnity Undertaking, together with the related TALF Certification, to the FRBNY at the time and in the manner prescribed by the FRBNY, with a copy to the Underwriter.
o) The Underwriter shall have received (i) an executed copy of an Auditor Attestation prepared by KPMG LLP, in the form most recently prescribed by the FRBNY under the TALF prior to such date (the “Auditor Attestation”) and (ii) evidence reasonably satisfactory to it that such Auditor Attestation has been delivered to the FRBNY at the time and in the manner prescribed by the FRBNY.
p) The Underwriter shall have received a reliance letter, dated as of the Closing Date and addressed to the Underwriter, of Xxxxx Xxxxx LLP, special counsel to the Company, satisfactory in form and substance to the Underwriter and counsel for its counsel, to the effect that the Underwriter, this Agreement in its capacity as a Primary Dealer, and all obligations of subject to the Underwriter hereunder may limitations in Section 8, will be canceled atentitled to rely on the negative assurances letter described in Section 6(h)(ii), or at any time prior to, such negative assurances letter will provide for such reliance.
q) On the Closing Date by the Underwriter. Notice of such cancellation shall be given to Date, (i) the Company and GE Capital shall have taken all actions required by the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required FRBNY for the Offered Notes to be delivered by this Section 6 eligible collateral under the TALF and (ii) the Offered Notes shall be delivered at eligible collateral under the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing DateTALF.
Appears in 1 contract
Samples: Underwriting Agreement (GE Dealer Floorplan Master Note Trust)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or overtly threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxCxxxxx Godward LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, in substantially in the form attached hereto as set forth in Exhibit D.B.
(ec) The Selling Stockholder Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx Dxxxx Xxxxxx LLP, intellectual property counsel for the Selling StockholderCompany, to have furnished to the Underwriter its opinion their opinion, dated the Closing Date, Date and addressed to the Underwriter and substantially Underwriter, to the effect that, to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the form attached hereto Registration Statement, which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as Exhibit E.an exhibit thereto, which is not described or filed as required; and the statements included in the Final Prospectus under the headings “Risk Factors” and “Business—Product Discovery and Development Collaborations, —License Arrangements” and —Patents and Proprietary Rights,” insofar as such statements summarize intellectual property legal matters, documents or proceedings discussed therein, are, are accurate and fair summaries of such legal matters, documents or proceedings.
(fd) The Company shall have requested and caused Hxxxx, Pxxxxx & MxXxxxxx, P.C., U.S. Food and Drug Administration (FDA) regulatory counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that, to the knowledge of such counsel, there is no lawsuit or regulatory proceeding, pending or threatened, brought by or before any court or governmental agency, authority or body or any arbitrator, involving the Company or its property, which is not adequately disclosed in the Final Prospectus, and there is no FDA-related franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Final Prospectus under the headings “Risk Factors—Risks Related to Our Business—If we or our collaborators are unable to obtain and maintain the GRAS determinations or regulatory approvals required before any flavors, flavor enhancers or taste modulators can be incorporated into products that are sold, we would be unable to commercialize our flavors, flavor enhancers and flavor modulators and our business would be adversely affected,” “Even if we or our collaborators receive a GRAS determination or regulatory approval and incorporate our flavors, flavor enhancers or taste modulators into products, those products may never be commercially successful” and “We will rely on third parties to manufacture our flavors and flavor enhancers on a commercial scale,” insofar as such statements summarize applicable provisions of the Federal Food, Drug, and Cosmetic Act, as amended, and the regulations promulgated thereunder, are accurate and fair summaries of such Act and regulations.
(e) The Underwriter shall have received from Cxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx Hxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ig) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at Underwriter, within one day of the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter., in substantially the form set forth in Exhibit C.
(jh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ig) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(li) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mj) The Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq National Market, and reasonably satisfactory evidence of such actions shall have been provided to the Underwriter.
(k) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto (with such changes as may be approved by counsel to the Underwriter) from each executive officer, each addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriterits counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Cxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx Hxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat Oxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Dxxxx Xxxxx, Esq., on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Senomyx Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxXxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersopinion, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B..
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxxxxx Procter LLP, Ohio intellectual property counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in form and substance reasonably satisfactory to the form attached hereto as Exhibit D.Underwriter.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fd) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request it requests for the purpose of enabling them it to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the President and Chief Executive Officer or and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (id) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kh) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule in Section 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mj) The Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(k) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto (a “Lock-Up Agreement”) from each officer and director of the Company and specified stockholders of the Company addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Catabasis Pharmaceuticals Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Underwriter the opinion, dated the Closing Date, in form and caused Wachtellsubstance reasonably acceptable to the Underwriter, Liptonand the letter, Xxxxx dated the Closing Date, in form and substance reasonably acceptable to the Underwrtier, of Skadden, Arps, Slate, Xxxxxxx & XxxxXxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed or such other counsel reasonably acceptable to the Underwriter, substantially in the form attached hereto as Exhibit B..
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Bird LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the UnderwriterDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable letter or letters (which may refer to counsel letters previously delivered to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(sUnderwriter), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or decrease incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (ie) of this Section 6 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwiseother), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kg) Subsequent to the Execution Time, there shall not have been any decrease in the rating ratings of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(as defined h) The Securities shall be eligible for purposes clearance and settlement through Clearstream and Euroclear.
(i) The Company shall have applied to list the Securities on the New York Stock Exchange, and satisfactory evidence of Rule 3(a)(62such action shall have been provided to the Underwriter.
(j) under The Underwriter shall have received from counsel, satisfactory to the Exchange Act) Underwriter, such opinion or any notice given opinions, dated the Closing Date, with respect to compliance with the laws of any intended or potential decrease country, other than the United States, in any such rating or of a possible change in any such rating that does not indicate whose currency Securities are denominated, the direction validity of the possible changeSecurities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(k) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Underwriter shall have received an opinion from tax counsel for the Company, satisfactory to the Underwriter and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwritertheir counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Units shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Partnership Parties contained herein as of the Execution Time and Time, the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Partnership Parties of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused WachtellXxxxxx, LiptonXxxxxx & Xxxxxxxx (New York) LLP, Xxxxx & Xxxx, special Republic of Liberia and Republic of The Xxxxxxxx Islands counsel for the CompanyPartnership Entities, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit D.C-1.
(ec) The Selling Stockholder Partnership shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., U.S. counsel for to the Selling StockholderPartnership Entities, to have furnished to the Underwriter its opinion written opinion, dated the Closing DateDate and addressed to you, addressed in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-2.
(d) The Partnership shall have requested and caused Xxxxxx Westwood & Riegels, special British Virgin Islands counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-3.
(e) The Partnership shall have requested and caused Xxxxxx Redo Xxxxxxx Advogados, special Brazilian counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form attached hereto as and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit E.C-4.
(f) The Partnership shall have requested and caused Xxxxxx, Xxxxxx & Xxxxxxxx (UK) LLP, special United Kingdom counsel for the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-5.
(g) The Partnership shall have requested and caused Xxxxxx, Xxxxxx & Xxxxxxxx Asia Practice LLP, special Singapore counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-6.
(h) The Partnership shall have requested and caused Hanafiah Ponggawa & Partners, special Indonesian counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-7.
(i) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the SecuritiesUnits, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Partnership Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gj) The Company Partnership shall have furnished to the Underwriter a certificate of the CompanyPartnership, signed on behalf of the Partnership by the Chairman of the Board or the Chief Principal Executive Officer or and the principal financial or accounting officer of the CompanyPrincipal Financial Officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Company Partnership Parties in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date Date, and each of the Company has Partnership Parties have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued, and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hk) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company Partnership Parties shall have requested and caused each of Ernst & Young LLP and KPMG PricewaterhouseCoopers LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, adopted by the Commission and the PCAOB, and (ii) stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the United States.
(jl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(km) Prior to the Closing Date, the Partnership Entities shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiariesPartnership Entities’ debt securities, if any such securities are outstanding, by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mo) The Securities Units shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq Global Market, subject to official notice of issuance, and reasonably satisfactory evidence of such actions shall have been provided to the Underwriter.
(p) At the Execution Time, the Partnership Entities shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each of the persons listed on Schedule III hereto.
(q) At the date of this Agreement and at the Closing Date, the Underwriter shall have received from the Partnership a certificate substantially in the form of Exhibit D hereto and signed by the Principal Financial Officer of the Partnership. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Partnership 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 offices of Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLP, counsel for the UnderwriterXxxxxx L.L.P., 000 Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be hereunder are subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Underwriter shall have received a letter, dated as of the date of the Final Preliminary Prospectus, with respect to the Final Preliminary Prospectus, and any supplement theretoa letter, have been filed dated as of the Closing Date with respect to the Final Prospectus, each of which is from Deloitte & Touche LLP in form and substance reasonably acceptable to the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(dUnderwriter.
(b) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission and there shall have been instituted or threatened.
no material adverse change (bnot in the ordinary course of business) The Company in the condition of the Depositor and its subsidiaries, taken as a whole, from that set forth in (i) the Disclosure Package as of the Applicable Time and (ii) the Registration Statement and the Final Prospectus; and the Underwriter shall have requested and caused Wachtellreceived, Liptonon the Closing Date, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersa certificate, dated the Closing Date and addressed signed by an executive officer of the Depositor, to the Underwriter, substantially in foregoing effect. The officer signing such certificate may rely on the form attached hereto best of his/her knowledge as Exhibit B.to proceedings pending or threatened.
(c) The Underwriter shall have received on the Closing Date an opinion of the General Counsel of the CompanyDepositor, shall have furnished to the Underwriter her opinion dated the Closing Date Date, in form and addressed substance reasonably acceptable to the Underwriter, substantially in the form attached hereto as Exhibit C..
(d) The Company Underwriter shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated received on the Closing Date an opinion of (i) Xxxxxxxx & Xxxxx LLP, special counsel to the Depositor, and addressed in form and substance reasonably acceptable to the Underwriter, substantially and (ii) VanCott, Xxxxxx, Cornwall & XxXxxxxx, Utah special counsel for Ally Bank, and in form and substance reasonably acceptable to the form attached hereto as Exhibit D.Underwriter, each dated the Closing Date.
(e) The Selling Stockholder Underwriter shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished received a negative assurance letter with respect to the Underwriter its opinion dated Disclosure Package as of the date hereof and with respect to the Final Prospectus, as of the date thereof and as of the Closing Date, addressed of Xxxxxxxx & Xxxxx LLP, special counsel to the Underwriter and substantially in the form attached hereto as Exhibit E.Depositor.
(f) The Underwriter shall have received from a negative assurance letter with respect to the Disclosure Package as of the date hereof and with respect to the Final Prospectus, as of the date thereof and as of the Closing Date, of Xxxxx Xxxx & Xxxxxxxx Xxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Underwriter shall have furnished to the Underwriter received a certificate signed by an executive officer or officers of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the CompanyDepositor, dated the Closing Date, in which such officer or officers, to the effect that:
(i) best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company Depositor in this Agreement, the Trust Sale and Servicing Agreement, the Trust Agreement, and the Pooling and Servicing Agreement are true and correct on and as of that the Closing Date with the same effect as if made on the Closing Date and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder or thereunder at or before the Closing Date.
(h) On or prior to the Closing Date;
, the Depositor shall not offer, sell, contract to sell or otherwise dispose of any additional similar asset-backed securities (ii) no stop order suspending which shall not affect the effectiveness Depositor’s right to offer, sell, contract to sell or otherwise dispose of the Registration Statement Class A-1 Notes, the Class B Notes, the Class C Notes or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, the Certificates) with respect to the Company’s knowledge, threatened; and
(iii) since the date assets of the most recent financial statements included in Trust without the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing DateUnderwriter’s prior written consent.
(i) The Company Underwriter shall have requested and caused each received on the Closing Date an opinion or opinions of Ernst Xxxxxxxx & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young Xxxxx LLP, at special counsel to Ally Bank and the Depositor, dated the Closing Date, letter(s)and with respect to certain matters regarding Ally Bank set forth in clause (iii) below, dated respectively as an opinion of the Execution Time andXxxxxxxx X. Xxxxxxx, if applicableGeneral Counsel to Ally Bank, as of the Closing Date, each in form and substance reasonably satisfactory to the Underwriter, (i) with respect to the characterization of the transfer of the Receivables by Ally Bank to the Depositor as a sale or contribution, (ii) concluding that a court having jurisdiction over the conservatorship or receivership of the Federal Deposit Insurance Corporation (FDIC) over Ally Bank would not, under applicable federal conservatorship or receivership law, (A) hold that the rights, titles, powers and privileges of the FDIC as conservator or receiver of Ally Bank would extend to the Receivables, (B) hold that the FDIC would be able to recover the Receivables using the repudiation power or (C) apply the doctrine of substantive consolidation to consolidate the assets and liabilities of the Depositor with the assets and liabilities of Ally Bank, and (iii) concluding that none of the following matters conflicts with, or results in any breach of any terms and provisions of, or constitutes (with or without notice or lapse of time) a default under, or results in the creation of any lien, charge or encumbrance upon any of the property or assets of the Depositor or Ally Bank pursuant to the terms of, any indenture, agreement, mortgage, deed of trust or other instrument to which the Depositor or Ally Bank is subject: the issue or delivery of the Offered Notes, the consummation of the transactions contemplated by the Trust Sale and Servicing Agreement, the Pooling and Servicing Agreement, the Trust Agreement, the Custodian Agreement or an administration agreement, to be dated as of the Closing Date, among Ally Bank, the Trust and the Indenture Trustee, nor the fulfillment of the terms of any of the foregoing.
(j) Subsequent to On the Execution Time or, if earlierClosing Date, the dates as of which information is given in Class A-1 Notes, the Registration Statement (exclusive of any amendment thereof) Class B Notes, the Class C Notes and the Prospectus (exclusive of any amendment or supplement thereto), there Certificates shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated issued by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Trust.
(k) Subsequent The Depositor shall have received the ratings letters that assign the ratings to the Execution Time, there shall not have been any decrease Offered Notes specified in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to Ratings Free Writing Prospectus. The Depositor will furnish the Underwriter with conformed copies of such further informationopinions, certificates certificates, letters and documents as the Underwriter may reasonably requestrequests.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Ally Auto Receivables Trust 2010-5)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Firm Units and the Option Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Partnership Parties contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Partnership Parties of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Wachtella written opinion relating to matters of Xxxxxxxx Islands law to have been furnished to the Underwriter, Liptondated the Closing Date and any settlement date, Xxxxx as applicable, and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
c) The Partnership shall have requested and caused Xxxxxx & XxxxXxxxxx L.L.P., U.S. counsel for to the CompanyPartnership Parties, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their written opinion, dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in form and substance reasonably satisfactory to the form attached hereto as Exhibit D.Underwriter.
(ed) The Selling Stockholder Partnership shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special Norwegian counsel for to the Selling Stockholder, Partnership Parties to have furnished to the Underwriter its opinion their written opinion, dated the Closing DateDate and any settlement date, as applicable, and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
e) The Partnership shall have requested and caused special United Kingdom tax counsel to the Partnership Parties to have furnished to the Underwriter their written opinion, dated the Closing Date and substantially any settlement date, as applicable, and addressed to the Underwriter, in form and substance satisfactory to the form attached hereto as Exhibit E.Underwriter.
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Company Partnership shall have furnished to the Underwriter a certificate of the CompanyPartnership, signed by the Chairman on behalf of the Board or Partnership, by the Chief Executive Officer or the principal financial or accounting officer and Chief Financial Officer of the CompanyPartnership, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Company Partnership Parties in this Agreement are true and correct on and as of the Closing Date and any settlement date, as applicable, with the same effect as if made on the Closing Date and any settlement date, as applicable, and each of the Company Partnership Parties has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing DateDate and any settlement date, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company Partnership Parties shall have requested and caused each of Ernst & Young LLP and KPMG LLP AS to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Underwriter, (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, adopted by the Commission and the PCAOB, and (ii) stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the United States.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries Partnership Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiariesPartnership Entities’ debt securities securities, if any, by any “nationally recognized statistical rating organization” (as defined for purposes of Rule in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Units shall have been listed and admitted and authorized for trading on the New York Stock Exchange, subject to official notice of issuance, and reasonably satisfactory evidence of such actions shall have been provided to the Underwriter.
l) At the Execution Time, the Partnership Parties shall have furnished to the Underwriter a letter substantially in the form of Exhibit C hereto from each of the persons listed on Schedule II hereto.
m) Prior to the Closing DateDate and any settlement date, as applicable, the Company and the Selling Stockholder Partnership Parties shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Partnership 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., counsel for the UnderwriterPartnership, 000 Xxxxxxxxx Xxxxxxat 0000 Xxxxxxxxxxxx Xxx. XX, Xxx XxxxXxxxx 000X, Xxx Xxxx Xxxxxxxxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase and pay for the Securities shall Certificates will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholder Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Bank of their respective its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof the Underwriter shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of each of __________________ and __________________ verifying the accuracy of such financial and statistical data contained in the Prospectus as the Underwriter shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Underwriter shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data;
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, Chase or The Chase Manhattan Corporation which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Certificates or makes it impractical to market the Certificates; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, Chase or The Chase Manhattan Corporation on any exchange or in the over-the-counter market by such exchange or by the Commission; (iii) any banking moratorium declared by Federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Certificates;
(d) The Company Underwriter shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersreceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the CompanyXxxxxxx Xxxxxxx & Xxxxxxxx, shall have furnished special counsel to the Underwriter her opinion dated Bank, __________________ , special counsel to the Closing Date Trust, and addressed such other counsel otherwise reasonably acceptable to the Underwriter, substantially in with respect to such matters as are customary for the form attached hereto as Exhibit C.type of transaction contemplated by this Agreement;
(de) The Company Underwriter shall have requested and caused Xxxxxxreceived an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, Halter & Xxxxxxxx LLP, Ohio special counsel for the Company, to have furnished to the Underwriter its opinionBank, dated the Closing Date and addressed satisfactory in form and substance to the Underwriter, substantially with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished Receivables to the Underwriter its Indenture Trustee, and an opinion dated the Closing Dateof ___________________, addressed Special Counsel to the Underwriter Trust, with respect to the perfection of the Trust's and substantially the Indenture Trustee's interests in the form attached hereto as Exhibit E.Receivables;
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for to the Underwriter, such opinion or opinions, dated the Closing Date and addressed satisfactory in form and substance to the Underwriter, with respect to the sale validity of the SecuritiesCertificates, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.;
(g) The Company Underwriter shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(h) The Underwriter shall have received an opinion of counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriter a certificate with respect to such matters as are customary for the transactions contemplated by this Agreement; In rendering such opinions, counsel to the Indenture Trustee may rely on the opinion of the Company, signed by the Chairman office of the Board or general counsel to the Chief Executive Officer or Indenture Trustee.
(i) The Underwriter shall have received an opinion of counsel to the principal financial or accounting officer Owner Trustee, and such other counsel reasonably satisfactory to the Underwriter and its counsel, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of the Companytransaction contemplated by this Agreement;
(j) The Certificates have been rated "___" by
(k) The Underwriter shall have received a certificate, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Bank in which such person, to the effect that:
best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder Bank in this Agreement are true and correct in all material respects on and as of the Closing Date Date, (ii) that the Bank has complied with all agreements and satisfied all conditions on its part to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP be performed or satisfied hereunder at or prior to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)(iii) the representations and warranties of the Bank, dated respectively as Seller and Servicer, in the Sale and Servicing Agreement and, as Depositor, in the Trust Agreement, are true and correct as of the Execution Time anddates specified in the Sale and Servicing Agreement and the Trust Agreement, if applicable, as (iv) that no stop order suspending the effectiveness of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, (exclusive v) that, subsequent to the date of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have has been (i) any no material adverse change or decrease specified in the letter financial position or letters referred to in paragraph (i) results of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties operation of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, Bank's automotive finance business except as set forth in or contemplated in the Disclosure Package and by the Prospectus or as described in such certificate and (exclusive of any amendment or supplement theretovi) the effect Prospectus does not contain any untrue statement of whicha material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in any case referred to in clause (i) or (ii) above, is, in the sole judgment light of the Underwritercircumstances in which they were made, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).not misleading;
(k1) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to On the Closing Date, all of the Company Notes shall have been issued and sold pursuant to the Note Underwriting Agreement; and
(m) The Class A-1 Notes shall have been rated "____" by [Standard & Poor's], "____" by [Xxxxx'x] and "____" by [Fitch], and the Selling Stockholder Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class [A-5] [B] Notes shall have furnished to been rated "____" by [Standard & Poor's], "____" by [Xxxxx'x] and "____" by [Fitch]. The Bank will furnish the Underwriter, or cause the Underwriter to be furnished, with such further informationnumber of conformed copies of such opinions, certificates certificates, letters and documents as the Underwriter may reasonably requestrequests.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Certificate Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriter. The obligations of the Selling Stockholder to sell the Shares to the Underwriter and the several obligations of the Underwriter to purchase and pay for the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as that are not qualified by materiality and to the accuracy of the Execution Time representations and warranties of the Company and the Selling Stockholder contained herein that are qualified by materiality at the date hereof, the Closing Date pursuant to Section 3 hereofor any Option Closing Date, as the case may be, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx (i) Sxxxxxx Xxxxxxx & XxxxBxxxxxxx LLP, counsel for the Company, to have furnished furnish to the Underwriter its their opinion and negative assurance lettersstatement, each dated the Closing Date or any Option Closing Date, as the case may be, and addressed to the Underwriter, Underwriter and substantially in the form attached hereto as Exhibit B.
of Exhibits B and C hereto; (cii) The Rxxxx X. Xxxxxxxxx, General Counsel of the Company, shall have furnished to furnish to the Underwriter her his opinion dated the Closing Date or any Option Closing Date, as the case may be, and addressed to the Underwriter, Underwriter and substantially in the form attached hereto as of Exhibit C.
D hereto; and (diii) The Company shall have requested and caused XxxxxxSkadden, Halter Arps, Slate, Mxxxxxx & Xxxxxxxx Fxxx LLP, Ohio special environmental counsel for the Company, to have furnished furnish to the Underwriter its opinion, their negative assurance letter as to certain specified environmental disclosure dated the Closing Date or any Option Closing Date, as the case may be, and addressed to the Underwriter, Underwriter and substantially in the form attached hereto as of Exhibit D.E hereto.
(eb) The Selling Stockholder shall have requested and caused Xxxxxxx Sxxxxxx Xxxxxxx & Xxxxxxxx Bxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished furnish to the Underwriter its opinion their opinion, dated the Closing Date or any Option Closing Date, as the case may be, and addressed to the Underwriter and substantially in the form attached hereto as of Exhibit E.B hereto.
(fc) The Underwriter shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date or any Option Closing Date, as the case may be, and addressed to the Underwriter, with respect to the offer and sale of the SecuritiesShares, the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Prospectus (together with any supplement thereto) and Registration Statement and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by (x) the Chairman of the Board or the Chief Executive Officer or President and (y) the principal financial or accounting officer of the Company, dated the Closing Date or any Option Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Time of Sale Prospectus, the Prospectus and Registration Statement, any amendment or supplement to the Time of Sale Prospectus, the Prospectus and Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement that are not qualified by materiality are true and correct in all material respects, and the representations and warranties of the Company in this agreement that are qualified by materiality are true and correct, in each case, on and as of the Closing Date or any Option Closing Date, as the case may be, with the same effect as if made on the Closing Date or such Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement Date or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted orOption Closing Date, to as the Company’s knowledge, threatenedcase may be; and
(iiiii) since the date of the most recent financial statements included in the Disclosure Package Prospectus and the Prospectus Registration Statement (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition, except financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in or contemplated in the Disclosure Package Time of Sale Prospectus and the Prospectus (exclusive of any supplement theretoamendments or supplements thereto subsequent to the date of this Agreement).
(he) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative executive officer of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, dated the Closing Date or any Option Closing Date, as the case may be, to the effect that the representations and warranties of the such Selling Stockholder in this Agreement that are not qualified by materiality are true and correct in all material respects and the representations and warranties of the Selling Stockholder that are qualified by materiality are true and correct on and as of the Closing Date to or any Option Closing Date, as the case may be, with the same effect as if made on the Closing Date, or such Option Closing Date, as the case may be, and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, or any Option Closing Date, as the case may be.
(if) The At the date hereof and at the Closing Date, the Company shall have requested and caused each of Ernst & Young LLP and KPMG PricewaterhouseCoopers LLP to have furnished furnish to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)a “comfort” letter, dated respectively as of the Execution Time anddate hereof, if applicable, and a bring-down “comfort” letter (i) on and dated as of the Closing Date and (ii) if applicable, on and dated as of any Option Closing Date, each in form and substance reasonably satisfactory to the Underwriter, confirming that it is an independent registered public accounting firm within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Time of Sale Prospectus, the Prospectus and Registration Statement; provided that the letter delivered on the Closing Date or any Option Closing Date, as applicable, shall use a “cut-off” date no more than three days prior to the date of such letter. All references in this Section 10(f) to the Time of Sale Prospectus, the Prospectus and Registration Statement include any amendment or supplement thereto at the date of the applicable letter.
(jg) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and each executive officer and director of the Company and certain affiliates of First Reserve Corporation, listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) Subsequent to the Execution Time orexecution and delivery of this Agreement and prior to the Closing Date or any Option Closing Date, if earlier, as the dates as of which information is given in the Registration Statement case may be:
(exclusive of any amendment thereofi) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have occurred any downgrading, nor shall any notice have been (i) given of any intended or potential downgrading or of any review for a possible change or decrease specified that does not indicate the direction of the possible change, in the letter or letters referred to in paragraph (irating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) of this Section 6 or under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the managementcondition, condition (financial or otherwise), or in the earnings, business business, properties or properties results of operations of the Company or and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as that set forth in or contemplated in the Disclosure Package and the Time of Sale Prospectus (exclusive of any amendment amendments or supplement theretosupplements thereto subsequent to the date of this Agreement) the effect of whichthat, in any case referred to in clause (i) or (ii) aboveyour judgment, is, in the sole judgment of the Underwriter, so is material and adverse as and that makes it, in your judgment, impracticable to make it impractical or inadvisable to proceed with market the offering or delivery Shares on the terms and in the manner contemplated in the Time of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Sale Prospectus.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(li) Prior to the Closing Date or any Option Closing Date, as the case may be, the Company and and/or the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mj) The Securities Shares shall have been listed and admitted and authorized for trading on the New York Stock Exchange.
(k) On the Closing Date or any Option Closing Date, as the case may be, the Registration Statement shall be effective; no stop order suspending the effectiveness of the Registration Statement shall be in effect, and satisfactory evidence of no proceedings for such actions purpose shall be pending before or threatened by the Commission.
(l) No Underwriter shall have been provided to notice of an adverse claim on the UnderwriterShares within the meaning of Section 8-102 of the UCC. If any of the conditions specified in this Section 6 10 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement Section 10 shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled cancelled at, or at any time prior to, the Closing Date or any Option Closing Date, as the case may be, by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall 10 will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 at 500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and Time, the Closing Date and any Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellSkadden, LiptonArps, Xxxxx Slate, Xxxxxxx & XxxxXxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersopinions, dated the Closing Date and addressed to the Underwriter, substantially in the form forms attached hereto as Exhibit B.
(c) The Exhibits B and C, and Xxxxxxxx X. Xxxxxxx, General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its her opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(ec) The Selling Stockholder Company shall have requested and caused Xxxxxxx Xxxxxxx (i) Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, special regulatory counsel for the Selling StockholderCompany, to have furnished to the Underwriter its opinion their opinion, dated the Closing Date, Date and addressed to the Underwriter and Underwriter, substantially in the form attached hereto as Exhibit E.E and (ii) (A) Xxxxxx & Xxxxxxxx P.C., and (B) Xxxxxxxx & Xxxxxxx LLP, special intellectual property counsels for BML and the Company, respectively, to have furnished to the Underwriter their opinions, each dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit F.
(fd) The Selling Stockholders shall have requested and caused Xxxxx X. Xxxxxxx XX, Esq., Kleinberg, Kaplan, Xxxxx & Xxxxx and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and such other counsel to the Selling Stockholders as are reasonably acceptable to the Underwriter, to have furnished to the Underwriter their respective opinions dated the Closing Date and addressed to the Underwriter, covering the matters specified in Exhibit G.
(e) The Underwriter shall have received from Xxxxx Xxxx Debevoise & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) The Selling Stockholder Stockholders shall have furnished to the Underwriter a certificate, signed by an authorized representative on behalf of the Selling Stockholder reasonably acceptable to counsel Stockholders and delivered pursuant to the Underwriter Custody Agreement, dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder Stockholders in this Agreement are true and correct in all material respects on and as of the Closing Date to with the same effect as if made on the Closing Date.
(ih) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter letters, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the same form and substance as the letters furnished by them in connection with the October 2005 offering of common stock by certain selling stockholders of the Company, updated accordingly to cover periods subsequent to such offering to the satisfaction of the Underwriter. The letter so furnished at the Closing Date shall contain “negative assurance” comfort as of and through November 30, 2005 and as of and through January 23, 2006, substantially in the form of the letter delivered to you prior to the Execution Time.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder Stockholders shall have furnished to the Underwriter such further information, customary closing and secretary certificates and documents as the Underwriter may reasonably request, including, without limitation, Forms W-8 or W-9, as required, from the Selling Stockholders.
(mk) The Securities shall have been listed and admitted and authorized duly approved for trading quotation on the New York Stock ExchangeNasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(l) As soon as practicable following the Execution Time and prior to the Closing Date, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from Endo Pharma LLC and each executive officer and director of the Company, addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Stockholders 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Skadden offices on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Endo Pharmaceuticals Holdings Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxLedgewood PC, counsel for the Company, to have furnished to the Underwriter its opinion opinions and negative assurance letters, letter dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date any settlement date and addressed to the Underwriter, substantially Underwriter in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed substance acceptable to the Underwriter, substantially in the form attached hereto as Exhibit D..
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsits opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing DateDate and any settlement date, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder Company shall have furnished to the Underwriter a certificate, certificate signed by an authorized representative the Secretary of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Company, dated the Closing DateDate and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the effect that the representations and warranties of the Selling Stockholder in Offering contemplated by this Agreement are true in full force and correct in effect and have not been modified, (iii) copies of all material respects on written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Closing Date officers of the Company. The documents referred to the same effect as if made on the Closing Datein such certificate shall be attached to such certificate.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Withum to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)and any settlement date, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the applicable letter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(kh) Subsequent to the Execution Time, there FINRA shall not have been raised any decrease in objection with respect to the rating of any fairness or reasonableness of the Company’s underwriting or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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 other arrangements of the possible changetransactions contemplated hereby.
(li) Prior The Securities shall be duly listed subject to notice of issuance on the Nasdaq Global Market, satisfactory evidence of which shall have been provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter and the Services Agreement.
(k) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) Prior to the Closing Date and any settlement date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriterits counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxx, unless otherwise indicated herein, on the Closing DateDate and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Ftac Zeus Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Shareholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Shareholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement has been issued, no order or any notice objecting to its preventing or suspending the use shall have of the Base Prospectus or the Final Prospectus has been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, LiptonXxxxxx, Xxxxx & XxxxBockius LLP, counsel for the Company, to have furnished furnish to the Underwriter its opinion and negative assurance letters10b-5 statement, dated the Closing Date and addressed to the Underwriter, in substantially in the form attached hereto as Exhibit B.of Annex A-1 and Annex A-2 hereto.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company TPG shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio its counsel for the Company, to have furnished furnish to the Underwriter its an opinion, dated the Closing Date and addressed to the Underwriter, in substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder forms of Annex B-1 and B-2 hereto, and the Trust shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, its counsel for the Selling Stockholder, to have furnished furnish to the Underwriter its opinion an opinion, dated the Closing Date, Date and addressed to the Underwriter and Underwriter, in substantially in the form attached hereto as Exhibit E.of Annex B-3 hereto.
(fd) The Company shall have requested and caused Xxxx X. Xxxxxxx, General Counsel of the Company, to furnish to the Underwriter his opinion, dated the Closing Date and addressed to the Underwriter, in substantially the form of Annex C hereto.
(e) The Underwriter shall have received from Xxxxx Xxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, as counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or (x) the Chief Executive Officer or and (y) the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect thatthat the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no order or any notice objecting to its preventing or suspending the use of the Base Prospectus or the Final Prospectus has been issued and no proceedings for that purpose any of those purposes have been instituted or, to the Company’s knowledge, are threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) At the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG LLP to furnish to the Underwriter letters, dated respectively as of the Execution Time and as of the Closing Date with respect to the Company and the Worthington Xxxxxxxxx Venture in form and substance satisfactory to the Underwriter.
(h) The Each Selling Stockholder Shareholder shall have furnished to the Underwriter a certificatecertificate of such Selling Shareholder, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the such Selling Stockholder Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date to with the same effect as if made on the Closing Date and such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed are satisfied hereunder prior to the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule in Section 3(a)(62) under 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.
(lj) At the Closing Date, the Securities shall continue to be listed on the New York Stock Exchange.
(k) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000’s counsel set forth in this Agreement, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Armstrong World Industries Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Securities Class B Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time date hereof and as of the Closing Date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholder Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and the Selling Stockholder of their respective other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated At the Closing Date and addressed to Time, the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect thatreceived:
(i1) the representations Opinions and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted ora negative assurance letter, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter each dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, each in form and substance reasonably satisfactory to the Underwriter.
(j2) Subsequent An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx LLP, counsel for WTC, individually, and as Subordination Agent, Trustee and Loan Trustee, in form and substance reasonably satisfactory to the Execution Time orUnderwriter and substantially in the form of Exhibit A hereto.
(3) An opinion, if earlierdated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Underwriter and substantially in the form of Exhibit B hereto.
(4) An opinion, dated as of the Closing Date, from in-house counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Underwriter and substantially in the form of Exhibit C hereto.
(5) An opinion and a negative assurance letter, each dated as of the Closing Date, from Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriter, each in form and substance reasonably satisfactory to the Underwriter.
(c) At the Closing Date, there shall not have been, since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) General Disclosure Package and the Prospectus (exclusive of Final Prospectus, any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any changecondition, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or properties business prospects of the Company or and its subsidiaries taken considered as a wholeone enterprise, whether or not arising from transactions in the ordinary course of business, except and you shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) such Closing Time, to the effect of which, in any case referred to in clause that (i) or there has been no such material adverse change, (ii) above, is, in the sole judgment representations and warranties of the Underwriter, so material Company contained in Section 1(a) hereof are true and adverse as to make it impractical or inadvisable to proceed correct with the offering or delivery same force and effect as though made at such Closing Time and (iii) the Company has complied in all material respects with all of the Securities as contemplated by agreements and satisfied in all material respects all of the Registration Statement (exclusive of any amendment thereof), conditions on its part to be performed or satisfied hereunder on or before the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Closing Date.
(kd) Subsequent to the Execution execution and delivery of this Agreement and prior to the Closing Time, there neither Xxxxx’x Investors Service, a division of Xxxxx’x Corp. nor Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business shall not have been any decrease in downgraded the rating of accorded any of the Company’s or its subsidiaries’ debt securities by (except for any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Actpass through certificates) or announced that any notice given probable downgrading of any intended or potential decrease in any such rating or of a possible change is about to occur in any such rating that does not indicate the direction of the possible changenear future.
(le) Prior Promptly after the execution of this Agreement and also at the Closing Time, the Underwriter shall have received from KPMG LLP a letter or letters, dated as of the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(f) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facility, the Class B Trust Agreement, the Participation Agreements and the Note Purchase Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriter shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such effect.
(g) Promptly after the Company execution of this Agreement and also at the Selling Stockholder Closing Time, each of the Appraisers shall have furnished to the Underwriter a letter from such further informationAppraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) The Class B Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) The Company shall have furnished to the Underwriter and its counsel, in form and substance satisfactory to them, such other documents, certificates and documents opinions as the Underwriter such counsel may reasonably request.
request for the purpose of enabling such counsel to pass upon the matters referred to in subsection (mb)(5) The Securities shall have been listed of this Section 4 and admitted in order to evidence the accuracy and authorized for trading on completeness of any of the New York Stock Exchangerepresentations, and satisfactory evidence warranties or statements, the performance of such actions shall have been provided any covenant by the Company theretofore to be performed, or the Underwriter. If compliance with any of the conditions herein contained.
(j) The Company shall have obtained a Ratings Confirmation (as defined in the Intercreditor Agreement) in respect of the Class AA Certificates and the Class A Certificates. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriter and its counsel. If any condition specified in this Section 6 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for default by the Underwriter, such failure to fulfill a condition may be waived by the Underwriter, or this Agreement and all obligations of may be terminated by the Underwriter hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Underwriter. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and the Selling Stockholder 8 hereof, which provisions shall remain 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The Xxxxxxxx X. Xxxxx, Xx., General Counsel of to the Company, shall have furnished to the Underwriter her his opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused caused, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.D.
(fe) The Underwriter shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ih) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter., to the effect set forth in Exhibit E.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lk) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(ml) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(m) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A-1 hereto from each party listed on Exhibit A-2 addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Santander Consumer USA Holdings Inc.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers' certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, [___________] shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall [___________] will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent , to the Execution Time or, if earlier, the dates effect that they have performed certain specified procedures as a result of which they have determined that such information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably requestrequest of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the caption "The Initial Mortgage Loans" and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(md) The Securities Depositor's Home Equity Mortgage Pass-Through Certificates Series [___________], [list classes] Certificates shall have been listed rated "AAA" by [Standard & Poor's, a division of the McGraw-Hill Companies, Inc. ("S&P"), "AAA" Fitch Ratings, Inc. ("Xxxxx") and admitted and authorized for trading on the New York Stock Exchange"Aaa" by Moody's Investors Service, and satisfactory evidence of such actions Inc. ("Moody's")]. [The Class M-1 Xxxxxxicates shall have been provided to the Underwriterrated "AA+" by S&P, "AA+" by Fitch and "Aa1" by Moody's. If any of the conditions specified in this Section 6 The Class M-2 Certificates shall not have been fulfilled when rated "AA" by S&P, "AA" by Fitch and as provided in this Agreement"Aa2" by Moody's. The Class M-3 Certificates shall have been rated "AA-" by S&P, or if any of the opinions "AA-" by Fitch and certificates mentioned above or elsewhere in this Agreement "Aa3" by Moody's. The Class M-4 Certificates shall not be reasonably satisfactory in form have been rated "A+" by S&P, "A+" by Fitch and substance to the Underwriter "A1" by Moody's. The Class M-5 Certificates shall have been rated "A" by S&P, "A" by Fitch and counsel for the Underwriter"A2" by Moody's. The Class M-6 Certificates shall have been rated "A-" by S&P, this Agreement "A-" by Fitch and all obligations of the Underwriter hereunder may be canceled at"A3" by Moody's. The Class M-7 Certificates shall have been rated "BBB+" by S&P, or at any time prior to"BBB+" by Fitch and "Baa1" by Moody's. The Class M-8 Certificates shall have been rated "BBB" by S&P, the Closing Date "BBB" by the UnderwriterFitch and "Baa" by Moody's. Notice of such cancellation shall be given to the Company The Class M-9F Certificates and the Selling Stockholder in writing or Class M-9A Certificates shall have been rated "BBB-" by telephone or facsimile confirmed in writingS&P, "BBB-" by Fitch and "Baa3" by Moody's. The documents required to be delivered Class A-R Certificates and Class A-RL Certificates shall have been rated "AAA" by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.S&P.]
Appears in 1 contract
Samples: Underwriting Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date pursuant to Section 3 hereof(including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The ProspectusUnderwriter shall have received from (i) a letter, and any supplement theretodated the date hereof, have been filed in the manner and confirming that they are independent public accountants within the time period required meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by Rule 424(b); any other material the Underwriter, a letter dated the Closing Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be filed taken and all filings required to be made by the Company pursuant to Rule 433(d) under the Act prior to the sale of the Offered Certificates shall have been filed with duly taken and made. At and prior to the Commission within the applicable time periods prescribed for such filings by Rule 433; and Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted instituted, or threatenedto the knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the securities of the Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Certificates.
(d) The Company Underwriter shall have requested received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and caused Wachtell, Lipton, Xxxxx & Xxxx, warranties of the Company contained in the Basic Documents are true and correct with the same force and effect as if made on the Closing Date and (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(e) The Underwriter shall have received an opinion of counsel for the Company, to have furnished which may be an opinion of in-house counsel to the Underwriter its opinion and negative assurance lettersCompany, dated the Closing Date and addressed to the Underwritereffect that:
(i) The Company is a corporation, substantially duly incorporated, validly existing and in good standing under the laws of the state of Delaware;
(ii) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Basic Documents;
(iii) The execution and delivery by the Company of, and the performance of the Company under, the Basic Documents have been duly authorized by all necessary corporate action of the Company;
(iv) Each of the Basic Documents has been duly executed and delivered by the Company;
(v) To the best of such counsel's knowledge and information, the execution and delivery of the Basic Documents and the consummation of the transactions contemplated therein will not conflict with or constitute a breach of, or default under, or result in the form attached hereto as Exhibit B.
(c) The General Counsel creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument, agreement or document to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the charter or by-laws of the Company, shall have furnished or any law, administrative regulation or administrative or court decree applicable to the Underwriter her opinion dated Company; and
(vi) To the Closing Date best of such counsel's knowledge, there is (A) no legal or governmental proceeding pending or threatened to which the Company is a party or to which any of the properties of the Company is subject that is required to be described in the Registration Statement or the Prospectus and addressed is not so described and (B) no material contract or document that is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Underwriter, substantially in the form attached hereto Registration Statement that is not so described or filed as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.required.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLPa certificate of an executive officer of the Servicer, counsel for dated as of the UnderwriterClosing Date, to the effect that, to the best of such officer's knowledge, such opinion officer has reviewed the Final Prospectus as amended or opinions, dated supplemented to the Closing Date and addressed nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to the UnderwriterServicer, with respect contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the sale statements therein, in light of the Securitiescircumstances under which they were made, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersnot misleading.
(g) The Company Underwriter shall have furnished received an opinion of counsel for the Servicer, which may be an opinion of in-house counsel to the Servicer, to the effect that:
(i) The Servicer is duly organized and validly existing as a national banking association in good standing under the federal laws of the United States and has the requisite power and authority, corporate or other, to own its own properties and conduct its own business, as presently conducted by it, and to enter into and perform its obligations under the Basic Documents to which it is a party and the Certificates;
(ii) Each of the Basic Documents to which the Servicer is a party has been duly and validly authorized, executed and delivered by such party;
(iii) No consent, approval, authorization or order of the State of North Carolina or federal court or governmental agency or body is required under the statutes, rules and regulations specifically regulating (as opposed to those of general application which may apply to) national banking associations and which are administered by federal or North Carolina bank regulatory authorities ("Applicable North Carolina or Federal Law") for the consummation by the Servicer of the transactions contemplated by the terms of the Basic Documents to which the Servicer is a party, except for those consents, approvals, authorizations or orders which previously have been obtained;
(iv) The consummation of the transactions contemplated by, and the performance by the Servicer of any other of the terms of, the Basic Documents to which it is a party, will not result in a breach of any term or provision of the charter or by-laws of the Servicer or, to the best of such counsel's knowledge, conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other material agreement or instrument to which the Servicer is a party or by which it is bound or any order of any State of North Carolina or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Servicer or any Applicable North Carolina or Federal Law; and
(v) To the best of such counsel's knowledge, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (A) asserting the invalidity of the Basic Documents to which the Servicer is a party or the Certificates or (B) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Basic Documents to which the Servicer is a party, which might materially and adversely affect the performance by the Servicer of its obligations under, or the validity or enforceability of, the Basic Documents or the Certificates.
(h) The Underwriter a certificate shall have received an opinion of Cadwalader, Xxxxxxxxxx & Xxxx, special counsel to the Company, signed by which opinion may rely on, and assume the Chairman of accuracy of, the Board or the Chief Executive Officer or the principal financial or accounting officer of the Companyopinion described in paragraph (e) above, dated the Closing Date, to the effect that:
(i) the representations and warranties The Offered Certificates have been duly authorized by all necessary corporate action of the Company and, when executed, authenticated and delivered in the manner contemplated by the Pooling Agreement and paid for pursuant to this Agreement are true Agreement, will be validly issued and correct on outstanding, and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior entitled to the Closing Datebenefits provided by the Pooling Agreement;
(ii) The Mortgage Loan Purchase Agreement constitutes the valid, legal and binding agreement of and the Company, enforceable against and the Company in accordance with its terms, subject to certain qualifications;
(iii) Assuming that the Pooling Agreement and this Agreement have been duly authorized, executed and delivered by the other parties thereto, the Pooling Agreement and this Agreement constitute the valid, legal and binding agreements of the Company and the Servicer, enforceable against the Company and the Servicer in accordance with their terms, subject to certain qualifications;
(iv) The Pooling Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the trust created by the Pooling Agreement is not required to be registered under the Investment Company Act of 1940, as amended;
(v) Each of the Class A and Class B-1 Certificates, on the date of original issuance thereof, will be a "mortgage related security" as such term is defined in Section 3(a)(41) of the Exchange Act;
(vi) The Registration Statement (which for purposes of such opinion shall not be deemed to include any exhibits filed therewith or any documents incorporated therein by reference) has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedissued; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hvii) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
statements (i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62A) under the Exchange Actheadings (1) or any notice given "SUMMARY OF PROSPECTUS--ERISA LIMITATIONS" and "--TAX STATUS," (2) "FEDERAL INCOME TAX CONSEQUENCES" and (3) "ERISA CONSIDERATIONS" in the Basic Prospectus and (B) under the headings (1) "SUMMARY OF TERMS--Federal Income Tax Consequences" and "--ERISA Considerations," (2) "RISK FACTORS--Tax Consequences 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.Residual
Appears in 1 contract
Samples: Underwriting Agreement (Ba Residential Securities Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellSkadden, LiptonArps, Xxxxx Slate, Xxxxxxx & XxxxXxxx LLP, counsel for the Company, to have furnished to the Underwriter its their opinion and negative assurance lettersletter, each dated the Closing Date and addressed to the Underwriter, substantially in form and substance reasonably satisfactory to the form attached hereto Underwriter. In rendering such opinion, such counsel may rely (A) as Exhibit B.to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused XxxxxxDLA Piper LLP (US), Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in form and substance reasonably satisfactory to the form attached hereto Underwriter. In rendering such opinion, such counsel may rely (A) as Exhibit D.
(e) The Selling Stockholder shall have requested to matters involving the application of laws of any jurisdiction other than the State of Maryland or the Federal laws of the United States, to the extent they deem proper and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPspecified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Selling StockholderUnderwriter and (B) as to matters of fact, to have furnished to the Underwriter its opinion dated extent they deem proper, on certificates of responsible officers of the Closing Date, addressed to the Underwriter Company and substantially in the form attached hereto as Exhibit E.public officials.
(fd) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLPDay, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Operating Partnership and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(sletters, (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under 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.
(li) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mj) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(k) Prior to the Closing Date, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Underwriter.
(l) The Company shall have furnished to the Underwriter a certificate of the principal financial or accounting officer of the Company, at the Execution Time and at the Closing Date, to the effect that the signer of such certificate is familiar with the accounting, operations and records systems of the Company, certifying that certain statements in identified pages of the Company’s proxy statement are, to the knowledge of the signer, accurate in all material respects and such other matters as the Underwriter shall reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLPDay, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be hereunder are subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material if a post-effective amendment is required to be filed by the Company pursuant to Rule 433(d) under the Act Securities Act, such post-effective amendment shall have been filed with become effective, not later than 5:00 P.M., New York City time, on the Commission within the applicable time periods prescribed for such filings by Rule 433date hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use post-effective amendment shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission; the Prospectus shall have been instituted or threatened.filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and all requests for additional information shall have been complied with to the satisfaction of the Underwriter;
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement Depositor contained herein are true and correct on and as of the Closing Date with the same effect as if made on and as of the Closing Date and the Company has representations and warranties of the Depositor and the Master Servicer in the Pooling and Servicing Agreement will be true and correct on the Closing Date; and the Depositor shall have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder and under the Basic Documents at or prior to the Closing Date;
(iic) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder Underwriter shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects received on and as of the Closing Date a certificate of an executive officer of the Depositor satisfactory to the same Underwriter to the effect as if made set forth in subsections (a) and (b) of this Section;
(d) on the date hereof and also on the Closing Date.
(i) The Company , [ ] shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to you letters to the effect that they have performed certain specified procedures requested by the Underwriter at with respect to the Execution Time and, information set forth in the case of Ernst & Young LLP, at the Closing Date, letter(sProspectus (including any Static Pool Data referred to therein), dated respectively as the respective dates of the Execution Time and, if applicable, as of the Closing Datedelivery thereof, in form and substance satisfactory to you;
(e) the Underwriter shall have received on and as of the Closing Date an opinion of XxXxx Xxxxxx LLP, counsel to the Depositor and the Underwriter, with respect to the validity of the Pooling and Servicing Agreement and the Certificates, the Registration Statement, the Prospectus and other related matters as the Underwriter may reasonably satisfactory request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(f) the Underwriter shall have received a letter or letters from each counsel delivering any written opinion to any Rating Agency in connection with the transaction described herein which is not otherwise described in this Agreement allowing the Underwriter to rely on such opinion as if it were addressed to the Underwriter.;
(jg) Subsequent to the Execution Time orUnderwriter shall have received copies of letters from Dominion Bond Rating Service, if earlierXxxxx’x Investors Service, Inc. and Fitch Ratings (the dates as of which information is given in “Rating Agencies”) stating that the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there Certificates shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except rated as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated on Schedule I hereto by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).Rating Agencies; and
(kh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s on or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior prior to the Closing Date, Date the Company and the Selling Stockholder Depositor shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may shall reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 3, hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxx & XxxxXxxxxxxx London LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused XxxxxxXxxxxx and Calder, Halter & Xxxxxxxx LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinion, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit D.Underwriter.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fd) The Underwriter shall have received from Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx (UK) LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Xxxxxx to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing DateDate and any settlement date, as applicable, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, if applicable, the last sentence of Section 3 shall be delivered at the office of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx (UK) LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 00 Xxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx 00000Xxxxxx Xxxxxxx, X00 0XX, Attention: Xxxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Target Global Acquisition I Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, Xxxx LLP shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall Deloitte & Touche LLP will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2007-2, Class 1A-1, Class 2A-1A, Class 2A-1F, Class 2A-2, Class 2A-3 and Class 2A-4 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”) and “Aaa” by Xxxxx’x Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “A-” by S&P and “A3” by Moody’s. The Class M-2 Certificates shall have been rated “BBB+” by S&P and “Baa1” by Moody’s. The Class M-3 Certificates shall have been rated “BBB” by S&P and “Baa2” by Moody’s. The Class M-4 Certificates shall have been rated “BBB-” by S&P and “Baa3” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
(e) The Underwriter shall have received the opinion of the Counsel to the Trustee, substantially to the effect set forth in Exhibit B.
(f) The Underwriter shall have received the opinion of the Counsel, dated as of the Closing Date, to the Servicer in form and substance satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto)date hereof, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or Depositor, which the Underwriter concludes in its subsidiaries taken as a whole, whether or not arising from transactions in judgment materially impairs the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment investment quality of the Underwriter, Certificates so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(kh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder The Depositor shall have furnished to the Underwriter such further information, certificates and documents as any other opinion of counsel delivered to the Underwriter may reasonably requestRating Agencies in connection with the rating of the Certificates.
(mi) The Securities Underwriter shall have received an indemnification letter from the Servicer for the information provided by the Servicer for inclusion in the Prospectus Supplement.
(j) The financial guaranty insurance policy, for the benefit of the Class A Certificateholders, shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriterissued by MBIA Insurance Corporation. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriterits counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Depositor in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Home Equity Mortgage Trust 2007-2)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell(i) Xxxx, LiptonWeiss, Xxxxx Rifkind, Xxxxxxx & XxxxXxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its their opinion and negative assurance lettersletter, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit B.
B-1, (cii) The Xxxxxxx X. Xxxxx, Senior Vice President, Deputy General Counsel and Corporate Secretary of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its his opinion, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-2, (iii) gaming counsel to the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholderCompany in Indiana, to have furnished to the Underwriter its opinion opinions, dated the Closing Date, Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-3 and (iv) gaming counsel to the Company in each jurisdiction listed on Schedule II hereto, to have furnished to the Underwriter opinions, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit E.B-4;
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx llp, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and is outstanding and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial change or any development involving a prospective change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ie) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)a “comfort letter” and a bring-down “comfort letter”, dated respectively dated, respectively, as of the Execution Time and, if applicable, and as of the Closing Date, each addressed to the Underwriter and in form and substance reasonably satisfactory to the UnderwriterUnderwriter and confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Disclosure Package and the Prospectus, including any amendment or supplement thereto as of the date of the applicable letter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earningsbusiness, business results of operations or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kg) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) The Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq Global Select Market.
(j) At the Execution Time, and satisfactory evidence of such actions the Company shall have been provided furnished to the Underwriter a letter substantially in the form of Exhibit A-1 hereto from each of the entities listed on Schedule III hereto addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any settlement date pursuant to Section 3 hereof, by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx llp, counsel for the Underwriter, 000 Xxxxxxxxx at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (CAESARS ENTERTAINMENT Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Kxxxxxxx & XxxxExxxx LLP, counsel for the Company, to have furnished to the Underwriter Representative its opinion and negative assurance letters, opinions dated the Closing Date and addressed to the Underwriterany settlement date, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Companyapplicable, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the UnderwriterRepresentative, substantially in a form reasonably acceptable to the form attached hereto as Exhibit C.Representative.
(dc) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Mxxxxx and Calder (Cayman) LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter Representative its opinion, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the UnderwriterRepresentative, substantially in a form reasonably acceptable to the form attached hereto as Exhibit D.Representative.
(ed) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter Representative shall have received from Xxxxx Xxxx Cravath, Swaine & Xxxxxxxx Mxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the UnderwriterRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter Representative may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter Representative a certificate of the Company, signed by the Chairman of the Board or the its Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Mxxxxx to have furnished to the Underwriter Representative, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the UnderwriterRepresentative.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the UnderwriterRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing Date, and any settlement date, as applicable, the Company and the Selling Stockholder shall have furnished to the Underwriter Representative such further information, certificates and documents as the Underwriter Representative may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock Exchange, and satisfactory evidence of such actions which shall have been provided to the UnderwriterRepresentative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and $10.10 per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter Representative and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.the
Appears in 1 contract
Samples: Underwriting Agreement (World Quantum Growth Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase borrow the Underwritten Securities and pay the Loan Fee as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(ai) The Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(ii) If, at or subsequent to the Execution Time it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective, the Registration Statement or such post-effective amendment shall have become effective no later than such date and time as consented to in writing by the Underwriter, and all filings, if any, required by Rules 424(b) and 430A under the Act shall have been timely made.
(b) The Company shall have requested and caused WachtellGxxxxx, Lipton, Xxxxx Dxxx & XxxxCxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letterstheir opinion, dated the Closing Date and addressed to the Underwriter, substantially covering such matters as are typically provided in the opinions delivered in connection with underwritten equity offerings, in form attached hereto as Exhibit B.and substance reasonably satisfactory to you.
(c) Cxxx, Raywid & Bxxxxxxxx L.L.P., special regulatory counsel to the Company, shall have furnished to you their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to you, to the effect that:
(i) The issue and sale of the Underwritten Securities and the compliance by the Company with the Share Lending Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Company or any of its subsidiaries or any of their property is subject; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of this Agreement and the Share Lending Agreement and the consummation of the transactions herein and therein contemplated; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in the Prospectus under the caption “Regulation and Legislation” and under the caption “Risk Factors” under the subheading “Risks Related to Regulatory and Legislative Matters,” insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(iv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Company’s and the Company’s subsidiaries’ management, the Company and its subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television industry, to such counsel’s knowledge, based solely upon its review of the publicly available records of the FCC and upon inquiry of the Company’s and its subsidiaries’ management, during the time the cable systems of the Company and its subsidiaries have been owned by the Company and its subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the FCC relating to the ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its subsidiaries or any cable system of the Company or any of its subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect.
(d) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its his written opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent you, to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.that:
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Units shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Partnership Parties contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Partnership Parties of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, a written opinion relating to matters of Xxxxxxxx Islands law to have been furnished to the Underwriter its opinion and negative assurance lettersUnderwriter, dated the Closing Date and addressed to the Underwriter, substantially in form and substance satisfactory to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company Partnership shall have requested and caused XxxxxxXxxxxx & Xxxxxx L.L.P., Halter & Xxxxxxxx LLP, Ohio U.S. counsel for to the CompanyPartnership Parties, to have furnished to the Underwriter its their written opinion, dated the Closing Date and addressed to the Underwriter, substantially in form and substance reasonably satisfactory to the form attached hereto as Exhibit D.Underwriter.
(ed) The Selling Stockholder Partnership shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special Norwegian counsel for to the Selling Stockholder, Partnership Parties to have furnished to the Underwriter its opinion their written opinion, dated the Closing Date, Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
e) The Partnership shall have requested and caused special United Kingdom tax counsel to the Partnership Parties to have furnished to the Underwriter their written opinion, dated the Closing Date and substantially addressed to the Underwriter, in form and substance satisfactory to the form attached hereto as Exhibit E.Underwriter.
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Company Partnership shall have furnished to the Underwriter a certificate of the CompanyPartnership, signed by the Chairman on behalf of the Board or Partnership, by the Chief Executive Officer or the principal financial or accounting officer and Chief Financial Officer of the CompanyPartnership, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Company Partnership Parties in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and each of the Company Partnership Parties has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company Partnership Parties shall have requested and caused each of Ernst & Young LLP and KPMG LLP AS to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)Date letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, adopted by the Commission and the PCAOB, and (ii) stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the United States.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries Partnership Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiariesPartnership Entities’ debt securities securities, if any, by any “nationally recognized statistical rating organization” (as defined for purposes of Rule in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Units shall have been listed and admitted and authorized for trading on the New York Stock Exchange, subject to official notice of issuance, and reasonably satisfactory evidence of such actions shall have been provided to the Underwriter.
l) At the Execution Time, the Partnership Parties shall have furnished to the Underwriter a letter substantially in the form of Exhibit C hereto from each of the persons listed on Schedule II hereto.
m) Prior to the Closing Date, the Company and the Selling Stockholder Partnership Parties shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Partnership 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., counsel for the UnderwriterPartnership, 000 Xxxxxxxxx Xxxxxxat 0000 Xxxxxxxxxxxx Xxx. XX, Xxx XxxxXxxxx 000X, Xxx Xxxx Xxxxxxxxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, Xxxx LLP shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall Deloitte & Touche LLP will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent , to the Execution Time or, if earlier, the dates effect that they have performed certain specified procedures as a result of which they have determined that such information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably requestrequest of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(md) The Securities Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-1, Class A-1A1, Class A-1A2, Class X-0X, Xxxxx X-0X, Class A-2 and Class A-3 Certificates shall have been listed and admitted and authorized for trading on the New York Stock Exchangerated “AAA” by Standard & Poor’s, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any a division of the conditions specified in this Section 6 shall not have been fulfilled when XxXxxx-Xxxx Companies, Inc. (“S&P”), “AAA” Fitch Ratings, Inc. (“Fitch”) and as provided 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 Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.“Aaa”
Appears in 1 contract
Samples: Underwriting Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2006-1)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Guarantors contained herein as of the Execution Time and as of the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Guarantors of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); ) and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused Wachtellreceived an opinion, Liptondated the Closing Date, Xxxxx of Skadden, Arps, Slate, Mxxxxxx & XxxxFxxx LLP, counsel for the Company, and of Jxxx X. Xxxxxxxxxxx, Executive Vice President, General Counsel and Secretary of the Company, in form and substance satisfactory to have furnished to counsel for the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.Underwriters.
(c) The General Counsel of the Company, Representatives shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriterreceived from Cravath, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter Swaine & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx Mxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the UnderwriterUnderwriters, such opinion or opinions, dated the Closing Date and addressed to the UnderwriterUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Representatives shall have received from Exxxxxx Bxxxxx & Green, P.C., special regulatory counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to health regulatory matters in connection with the offer and sale of the Securities.
(e) The Company shall have furnished to the Underwriter Representatives a certificate of the Company, signed by the Chairman a President or Vice President of the Board or the Chief Executive Officer or Company and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company and each of the Guarantors has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s or the Guarantors’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), business prospects, earnings, business affairs of the Company and its subsidiaries, considered as a one enterprise, whether or not arising in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hf) The Selling Stockholder At the time of execution of this Agreement, the Representatives shall have furnished received from PricewaterhouseCoopers LLP, a letter dated such date, which in form and substance satisfactory to the Underwriter a certificateRepresentatives and PricewaterhouseCoopers LLP, signed by an authorized representative containing statements and information of the Selling Stockholder reasonably acceptable type ordinarily included in accountants’ “comfort letters” to counsel Underwriters with respect to the Underwriter dated financial statements and certain financial information contained in the Disclosure Package.
(g) At the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, a letter dated such date, to the effect that they reaffirm the representations and warranties statements made in the letter furnished pursuant to subsection (f) of this Section 6, except that the Selling Stockholder specified dated referred in this Agreement are true and correct in all material respects on and as of the Closing Date such letter to the same effect as if made on shall be a date not more than three Business Days prior to the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(jh) Subsequent to the Execution Time date of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph paragraphs (if) and (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the UnderwriterRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ki) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under 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, and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any of the Company's debt securities (other than an announcement with positive implications of possible upgrading).
(lj) Substantially concurrently with the Closing Date, all of the 2014 Notes tendered in the Tender Offer on or prior to the Consent Payment Deadline (as such term is defined in the Offer to Purchase), and the related consents, shall have been accepted for purchase by the Company, on the terms and conditions described in the Offer to Purchase and in conformity with the description thereof in the Disclosure Package and the Final Prospectus (without giving effect to any waivers of conditions thereto not consented to by the Representatives).
(k) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter Representatives such further information, certificates and documents as the Underwriter Representatives may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter Underwriters, the Company and the Guarantors, except as provided in Section 7 and except that Sections 1, 5(k), 8 and 11 to 20 shall survive any such termination and remain in full force and effect, hereunder may be canceled at, or at any time prior to, the Closing Date by the UnderwriterRepresentatives. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Cravath, Swaine & Xxxxxxxx Mxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 800 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000-0000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter Underwriters to purchase the Initial Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date pursuant to Section 3 hereofand each Date of Delivery, as the case may be, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a: The Registration Statement, including any Rule 462(b) The ProspectusRegistration Statement, has become effective and any supplement thereto, have been filed in on the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and Closing Date no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, and no proceedings any request on the part of the Commission for that purpose additional information shall have been instituted or threatened.
(b) The Company complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus shall have requested and caused Wachtellbeen filed with the Commission in accordance with Rule 424(b). At the Closing Date, Liptonthe Underwriter shall have received (i) the favorable opinion, Xxxxx dated as of the Closing Date, of Xxxxxx & XxxxXxxxxx L.L.P., counsel for the Company, in form and substance satisfactory to have furnished counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter its opinion may reasonably request, and negative assurance letters(ii) the favorable opinion, dated as of the Closing Date Date, of Xxxxxxxx X. Xxxxx, Esq., Senior Vice President, General Counsel, Secretary and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel Corporate Compliance Officer of the Company, shall have furnished with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated may reasonably request. At the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from the favorable opinion, dated as of the Closing Date, of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date in form and addressed substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, with respect as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the sale Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and officers of the Company and the Selling Stockholder its subsidiaries and certificates of public officials. The Underwriter shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter received a certificate of the Company, signed by the Chairman President or a Vice President of the Board or Company and of the Chief Executive Officer or the principal chief financial or chief accounting officer of the Company, dated as of the Closing Date, to the effect that:
that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in this Agreement Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date and Date, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
, and (iiiv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to or are pending or are contemplated by the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated Commission. At the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company Underwriter shall have requested and caused each of received from Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)a letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the Execution Time orfinancial statements and certain financial information contained in the Registration Statement and the Prospectus. At the Closing Date and each Date of Delivery, if earlieras the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement (exclusive of Prospectus, any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the managementcondition, condition (financial or otherwise), or in the earnings, business business, prospects, properties or properties results of operations of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, isthat, in the sole reasonable judgment of the Underwriter, so material and adverse as makes it impracticable to make it impractical or inadvisable to proceed with the offering or delivery of market the Securities as contemplated by on the Registration Statement (exclusive of any amendment thereof), the Disclosure Package terms and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of manner contemplated in the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to Prospectus. At the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized approved for trading listing on the New York Stock Exchange, and satisfactory evidence subject only to official notice of such actions issuance. The Underwriter shall have been provided to the Underwriter. If any received each of the conditions specified signed Lock-Up Agreements referred to in this Section 6 shall not have been fulfilled when 5(i) hereof, and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this each such Lock-Up Agreement shall not be reasonably satisfactory in form full force and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or effect at any time prior to, the Closing Date and the Delivery Date, as the case may be. In the event that the Underwriter exercises its option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Underwriter. Notice Company or any subsidiary of such cancellation the Company hereunder shall be given to the Company true and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered correct as of each Date of Delivery and, at the office relevant Date of Xxxxx Xxxx & Xxxxxxxx LLPDelivery, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.Underwriter shall have received:
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellXxxxxx & Xxxxxxx, Lipton, Xxxxx & XxxxLLP, counsel for the Company, to have furnished to the Underwriter its their opinion or opinions and negative assurance lettersletter, dated the Closing Date and addressed to the Underwriter, Underwriter substantially in the form attached hereto as of Exhibit B.A to this agreement.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsand letter, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of both the Company’s general counsel and either the chief financial officer or principal accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition, financial or otherwise, or in the earnings, business or operations, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.[intentionally omitted]
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change been, except as set forth in or decrease specified contemplated in the letter or letters referred to in paragraph Final Prospectus (i) exclusive of this Section 6 or (ii) any supplement thereto), any change, or any development involving a prospective changedevelopment, in or affecting the management, condition (financial or otherwise), earnings, business or properties operations of the Company or and its subsidiaries taken subsidiaries, considered as a wholeone entity, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kg) The Selling Stockholder shall have furnished to the Underwriter a certificate of the Selling Stockholder signed by an authorized representative of the Selling Stockholder, dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date and the Selling Stockholder has complied with all the agreements and satisfied all the conditions to be performed or satisfied by the Selling Stockholder under this Agreement at or prior to the Closing Date;
(h) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation cancelation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxx & XxxxXxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its their opinion and negative assurance lettersletter, each dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit B.B-1 and Exhibit B-2 hereto.
(c) The Underwriter shall have received on the Closing Date an opinion of Xxxxxxxxx Xxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date, to the effect set forth in Exhibit C. Such opinion shall be rendered to the Underwriter at the request of the Company and shall so state therein.
(d) The Selling Stockholders shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Selling Stockholders, to have furnished to the Underwriter her their opinion dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit C.D-1.
(de) The Company Selling Stockholders shall have requested and caused XxxxxxXxxxxx and Calder, Halter & Xxxxxxxx LLP, Ohio Cayman Island counsel for the CompanySelling Stockholders, to have furnished to the Underwriter its opinion, their opinion dated the Closing Date and addressed to the Underwriter, substantially in form and substance satisfactory to the form attached hereto Underwriter. In rendering such opinion, such counsel may rely (A) as Exhibit D.
(e) The Selling Stockholder shall have requested to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPspecified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Selling StockholderUnderwriter, and (B) as to matters of fact, to have furnished to the Underwriter its opinion dated extent they deem proper, on certificates of authorized officers of the Closing Date, addressed to the Underwriter Selling Stockholders and substantially in the form attached hereto as Exhibit E.public officials.
(f) The Underwriter shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the a principal financial or accounting officer of the Company, on behalf of the Company and not in his or her individual capacity, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus, there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(h) The Each Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an one or more authorized representative officers of the such Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, dated the Closing Date, to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto with respect to the Selling Stockholder Information and this Agreement, and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company Underwriter shall have requested and caused received from each of KPMG, the independent registered public accounting firm for the Company, and Ernst & Young LLP and KPMG LLP to have furnished Young, the independent registered public accounting firm for Diversey Holdings, a “comfort letter” dated the date hereof addressed to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing DateUnderwriter, in form and substance reasonably satisfactory to the Underwriter, covering the relevant financial information in the Disclosure Package and other customary matters. In addition, on the Closing Date, the Underwriter shall have received from each such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Underwriter, in form and substance satisfactory to the Underwriter, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the relevant financial information in the Final Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ip) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(m) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the Company’s stockholders listed in Schedule V hereto, addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the each Selling Stockholder 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 Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, or at such other location as determined in accordance with Section 3 of this Agreement, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of each of the Transaction Documents, the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx & XxxxXxxxxx P.C., counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersRepresentative their opinion, dated the Closing Date and addressed to the UnderwriterRepresentative, to the effect set forth in Annex A-1. Such counsel, or counsel to the Note Guarantors, will also furnish one or more opinions, in form and substance reasonably satisfactory, with regard to the Notes Guarantors, substantially to the effect set forth in the form attached hereto as Exhibit B.Annex A-2 hereto.
(cd) The Xxxxx Xxxxxxx, Assistant General Counsel of the Company, shall have furnished to the Underwriter her opinion Representative such counsel's written opinion, as counsel to the Company, addressed to the Representative and dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the UnderwriterRepresentative, substantially to the effect that, except to the extent set forth in the form attached hereto Disclosure Package and the Final Prospectus, and except for directors' shares which are not material in amount, all the outstanding shares of capital stock of each Subsidiary are owned by the Company directly or indirectly through one or more wholly owned Subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party. In rendering such opinion, such counsel may rely as Exhibit C.
to matters involving the application of laws of any jurisdiction other than the United States or the corporate laws of the State of Delaware, to the extent he deems proper and specifies in such opinion, upon the opinion of other counsel of good standing whom he believes to be reliable and who are satisfactory to counsel for the Underwriter. Such opinion may also contain customary qualifications and limitations. References to the Disclosure Package and the Final Prospectus in this paragraph (d) The Company shall have requested and caused include any amendments or supplements thereto at the Closing Date.
(e) Xxxxxx, Halter Del Castillo, Bacorro, Xxxxxx, Calma & Xxxxxxxx LLPXxxxxxxxx Law Offices, Ohio Philippines counsel for the Company, to shall have furnished to the Underwriter its Representative such counsel's written opinion, dated as counsel to the Closing Date and Company, addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested Representative and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed in form and substance reasonably satisfactory to the Underwriter Representative, to the effect that:
(i) each of the Subsidiaries incorporated or organized under the laws of the Philippines (the "Philippines Subsidiaries") has been duly incorporated and substantially is validly existing as a corporation in good standing under the form attached hereto laws of the Philippines, with full corporate power and authority to own or hold its properties and to conduct the businesses in which it is engaged; and
(ii) all the outstanding shares of capital stock of each Philippines Subsidiary have been duly authorized and validly issued, are fully paid and non assessable and, except such shares of each Philippines Subsidiary owned by directors thereof, which shares in each case do not exceed 0.1% of the outstanding shares of such Subsidiary, are owned by the Company directly or indirectly through one or more wholly owned Subsidiaries, free and clear of any claim, lien, encumbrance, security 19 interest, restriction upon voting or transfer or any other claim of any third party. In rendering such opinion, such counsel may rely as Exhibit E.to matters of fact, to the extent they deem proper on certificates of responsible officers of the Company and public officials. Such opinion may also contain customary qualifications and limitations.
(f) Xxx & Xxxxx, Korean Counsel for the Company, shall have furnished to the Representative such counsel's written opinion, as counsel to the Company, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative, to the effect that:
(i) such of the Subsidiaries incorporated or organized under the laws of the Republic of Korea (the "Korean Subsidiaries") has been duly incorporated and is validly existing as corporations under the laws of the Republic of Korea, with full corporate power and authority to own or hold its properties and to conduct its businesses in accordance with its Articles of Incorporation; and
(ii) all the outstanding shares of capital stock of each Korean Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable, and, in the case of each Korean Subsidiary, are owned by the Company directly or indirectly through one or more wholly owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of each Korean Subsidiary and the Company and public officials. Such opinion may also contain customary qualifications and limitations.
(g) The Underwriter Representative shall have received from Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the UnderwriterRepresentative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter Representative may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gh) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, a letter, in form and substance satisfactory to the Underwriter (i) confirming that they are the independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Act and the Exchange Act and (ii) stating the conclusions and findings of such firm with respect to financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the form of which is set forth in Annex B hereto.
(i) The Company shall have furnished to the Underwriter Representative a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any amendment or supplement thereto and this Agreement and that(1):
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s 's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectdevelopment which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, business or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition condition
(1) This certificate or a separate certificate will cover compliance with debt covenants in Company's indentures. (financial or otherwise), earningsresults of operations, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the UnderwriterRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Notes; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Notes.
(l) Subsequent to the Execution Time, there shall not have been any decrease downgrading in the rating of any of the Company’s or its subsidiaries’ 's debt securities by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 3(a)(62436(g) under the Exchange Act) and no such organization shall have publicly announced that it has under surveillance or any notice given of any intended or potential decrease in any such rating or review (other than an announcement with positive implications of a possible change upgrading in its rating of any such rating that does not indicate the direction of the possible changeCompany's debt securities).
(lm) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(n) The concurrent offering of convertible senior subordinated notes described in the Final Prospectus shall have closed.
(o) The Company shall have accepted at least $400,000,000 aggregate principal amount of its 9.25% senior notes due 2008 for purchase in the concurrent tender offer described in the Final Prospectus.
(p) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter Representative and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the UnderwriterRepresentative. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxLedgewood PC, counsel for the Company, to have furnished to the Underwriter its opinion opinions and negative assurance letters, letter dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date any settlement date and addressed to the Underwriter, substantially Underwriter in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed substance acceptable to the Underwriter, substantially in the form attached hereto as Exhibit D..
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsits opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing DateDate and any settlement date, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder Company shall have furnished to the Underwriter a certificate, certificate signed by an authorized representative the Secretary of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Company, dated the Closing DateDate and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the effect that the representations and warranties of the Selling Stockholder in Offering contemplated by this Agreement are true in full force and correct in effect and have not been modified, (iii) copies of all material respects on written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Closing Date officers of the Company. The documents referred to the same effect as if made on the Closing Datein such certificate shall be attached to such certificate.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Withum to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)and any settlement date, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the applicable letter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i(f) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(kh) Subsequent to the Execution Time, there FINRA shall not have been raised any decrease in objection with respect to the rating of any fairness or reasonableness of the Company’s underwriting or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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 other arrangements of the possible changetransactions contemplated hereby.
(li) Prior The Securities shall be duly listed subject to notice of issuance on the Nasdaq Global Market, satisfactory evidence of which shall have been provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter and the Services Agreement.
(k) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) Prior to the Closing Date and any settlement date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxx, unless otherwise indicated herein, on the Closing DateDate and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Ftac Zeus Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase and pay for the Securities shall Certificates will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholder Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Bank of their respective its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof the Underwriter shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of each of Price Waterhouse LLP and Xxxxxx Xxxxxxxx verifying the accuracy of such financial and statistical data contained in the Prospectus as the Underwriter shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Underwriter shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data;
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, Chase or The Chase Manhattan Corporation which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Certificates or makes it impractical to market the Certificates; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, Chase or The Chase Manhattan Corporation on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by Federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Certificates;
(d) The Company Underwriter shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersreceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the CompanyXxxxxxx Xxxxxxx & Xxxxxxxx, shall have furnished special counsel to the Underwriter her opinion dated Bank, Xxxxxxxx, Xxxxxx & Finger, special counsel to the Closing Date Trust, and addressed such other counsel otherwise reasonably acceptable to the Underwriter, substantially in with respect to such matters as are customary for the form attached hereto as Exhibit C.type of transaction contemplated by this Agreement;
(de) The Company Underwriter shall have requested and caused Xxxxxxreceived an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, Halter & Xxxxxxxx LLP, Ohio special counsel for the Company, to have furnished to the Underwriter its opinionBank, dated the Closing Date and addressed satisfactory in form and substance to the Underwriter, substantially with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished Receivables to the Underwriter its Indenture Trustee, and an opinion dated the Closing Dateof Xxxxxxxx, addressed Xxxxxx & Finger, Special Counsel to the Underwriter Trust, with respect to the perfection of the Trust's and substantially the Indenture Trustee's interests in the form attached hereto as Exhibit E.Receivables;
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for to the Underwriter, such opinion or opinions, dated the Closing Date and addressed satisfactory in form and substance to the Underwriter, with respect to the sale validity of the SecuritiesCertificates, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.;
(g) The Company Underwriter shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(h) The Underwriter shall have received an opinion of counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriter a certificate with respect to such matters as are customary for the transactions contemplated by this Agreement; In rendering such opinions, counsel to the Indenture Trustee may rely on the opinion of the Company, signed by the Chairman office of the Board or general counsel to the Chief Executive Officer or Indenture Trustee.
(i) The Underwriter shall have received an opinion of counsel to the principal financial or accounting officer Owner Trustee, and such other counsel reasonably satisfactory to the Underwriter and its counsel, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of the Companytransaction contemplated by this Agreement;
(j) The Certificates have been rated "A+" by Standard & Poor's, A2 by Xxxxx'x and "A+" by Fitch;
(k) The Underwriter shall have received a certificate, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Bank in which such person, to the effect that:
best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder Bank in this Agreement are true and correct in all material respects on and as of the Closing Date Date, (ii) that the Bank has complied with all agreements and satisfied all conditions on its part to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP be performed or satisfied hereunder at or prior to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)(iii) the representations and warranties of the Bank, dated respectively as Seller and Servicer, in the Sale and Servicing Agreement and, as Depositor, in the Trust Agreement, are true and correct as of the Execution Time anddates specified in the Sale and Servicing Agreement and the Trust Agreement, if applicable, as (iv) that no stop order suspending the effectiveness of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, (exclusive v) that, subsequent to the date of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have has been (i) any no material adverse change or decrease specified in the letter financial position or letters referred to in paragraph (i) results of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties operation of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, Bank's automotive finance business except as set forth in or contemplated in the Disclosure Package and by the Prospectus or as described in such certificate and (exclusive of any amendment or supplement theretovi) the effect Prospectus does not contain any untrue statement of whicha material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in any case referred to in clause (i) or (ii) above, is, in the sole judgment light of the Underwritercircumstances in which they were made, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.misleading;
(l) Prior to On the Closing Date, all of the Company and the Selling Stockholder Notes shall have furnished been issued and sold pursuant to the Note Underwriting Agreement; and
(m) The Class A-1 Notes shall have been rated "A-1+" by Standard & Poor's, P-1 by Xxxxx'x and "F-1+" by Fitch. The Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class A-5 Notes shall have been rated "AAA" by Standard & Poor's, Aaa by Xxxxx'x and "AAA" by Fitch. The Bank will furnish the Underwriter, or cause the Underwriter to be furnished, with such further informationnumber of conformed copies of such opinions, certificates certificates, letters and documents as the Underwriter may reasonably requestrequests.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Certificate Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed and have become effective in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx White & XxxxCase LLP, counsel for the Company, to have furnished to the Underwriter its opinion opinions and negative assurance lettersletter, each dated the Closing Date and settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxxxx and Xxxxxx (Cayman) LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinionopinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in form and substance reasonably acceptable to the form attached hereto as Exhibit D.Underwriter.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fd) The Underwriter shall have received from Xxxxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or settlement date, as applicable, and addressed to the Underwriter, with respect in form and substance reasonably acceptable to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably requireUnderwriter, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in by the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Withum to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate or settlement date (as applicable), letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate or settlement date (as applicable), in form and substance reasonably satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the years ended December 31, 2022 and December 31, 2023, provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in its opinion the audited financial statements, the unaudited financial statements and any financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain 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 Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (iSection 6(f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing DateDate or settlement date (as applicable), the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting terms or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock ExchangeNasdaq, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Founder’s Purchase Agreement, the Share Subscription Agreement, the Registration Rights Agreement and the Insider Letter.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Company shall have caused the applicable purchase price for the Private Placement Shares to be deposited into the Trust Account so that together with the net proceeds for the Ordinary Shares (including the Deferred Discount), or with respect to the Optional Securities, the net proceeds from the Optional Securities (including the Deferred Discount), the Trust Account would equal the product of the number of Ordinary Shares sold and the public offering price per Ordinary Share as set forth on the cover of the Prospectus. Notwithstanding the foregoing, in no event will the Company take any action that would result in the Company receiving proceeds from the sale of the Private Placement Shares in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the Purchase Price set forth in the last sentence of Section 2(a) of this Agreement and (iii) the amount of money to be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
(m) No order preventing or suspending the sale of the Ordinary Shares in any jurisdiction designated by the Underwriter pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 6 shall be delivered at the office of Xxxxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 at 601 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxtention: Xxxxxxxxx Xxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Helix Acquisition Corp. II)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Bonds shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and Atmos Energy contained in this Underwriting Agreement, on the Selling Stockholder part of Atmos Energy contained herein in Article III of the Sale Agreement, and on the part of Atmos Energy contained in Section 6.01 of the Servicing Agreement as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Issuer and the Selling Stockholder Atmos Energy made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and the Selling Stockholder Atmos Energy of their respective obligations hereunder hereunder, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, Prospectus shall have been filed in with the manner and within Commission pursuant to Rule 424 under the time period required by Rule 424(b); any other Securities Act prior to 5:30 P.M., New York time, on the second business day after the date of this Underwriting Agreement. In addition, all material required to be filed by the Company Issuer or Atmos Energy pursuant to Rule 433(d) under the Securities Act that was prepared by either of them or that was prepared by any Underwriter and timely provided to the Issuer or Atmos Energy shall have been filed with the Commission within the applicable time periods period prescribed for such filings filing by such Rule 433; and no 433(d) under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued be in effect, and no proceedings for that purpose shall have been instituted be pending before, or threatened.
(b) The Company threatened by, the Commission on the Closing Date; and the Underwriter shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersreceived one or more certificates, dated the Closing Date and addressed signed by an officer of Atmos Energy and the Issuer, as appropriate, to the Underwritereffect that no such stop order is in effect and that no proceedings for such purpose are pending before, substantially in or to the form attached hereto knowledge of Atmos Energy or the Issuer, as Exhibit B.the case may be, threatened by, the Commission.
(c) The General Xxxxxx Xxxxxxx Xxxxx LLP, as Counsel of for the CompanyUnderwriter, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their written opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the SecuritiesBonds, the Indenture, the other Issuer Documents, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) Statement and other related matters matters; and such counsel shall have received such papers and information as the Underwriter they may reasonably require, and the Company and the Selling Stockholder shall have furnished request to such counsel such documents as they request for the purpose of enabling enable them to pass upon such matters.
(gd) The Company Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., Delaware counsel for the Issuer, shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Datetheir written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding the filing of a voluntary bankruptcy petition.
(e) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., Delaware counsel for the Issuer, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding certain Delaware Uniform Commercial Code matters.
(f) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., Delaware counsel for the Issuer, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding other corporate matters.
(g) Xxxxxx Xxxxxx LLP, counsel for the Issuer and Atmos Energy, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, regarding securities laws and other matters.
(h) Xxxxxx Xxxxxx LLP, counsel for the Issuer and Atmos Energy, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding certain bankruptcy and creditors rights issues relating to the Issuer.
(i) Xxxxxx Xxxxxx LLP, counsel for the Issuer and Atmos Energy, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, as to certain Federal constitutional matters relating to the Securitized Utility Tariff Property.
(j) Xxxxxx Xxxxxx LLP, counsel for the Issuer and Atmos Energy, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, with respect to additional corporate, creditors rights and federal income tax matters relating to the Issuer and the Bonds.
(k) Husch Xxxxxxxxx LLP, Kansas constitutional law counsel for the Issuer and Atmos Energy, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, regarding certain Kansas constitutional matters relating to the Securitized Utility Tariff Property.
(l) Xxxxxxxx & Xxxx, Kansas regulatory for the Issuer and Atmos Energy, shall have furnished to the Underwriter their opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding certain Kansas regulatory issues.
(m) Xxxxxxxx & Xxxx, Kansas regulatory counsel for Atmos Energy and the Issuer, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, with respect to the characterization of the transfer of the Securitized Utility Tariff Property by Atmos Energy to the Issuer as a “true sale” for Kansas law purposes.
(n) Xxxxxxxx & Xxxx, Kansas regulatory counsel for Atmos Energy and the Issuer shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, regarding various issues, including enforceability, certain Kansas regulatory law matters, including security interest creation, perfection and priority issues under the Securitization Law and the Kansas UCC.
(o) Xxxxxxx and Xxxxxx LLP, counsel for the Indenture Trustee, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding certain matters relating to the Indenture Trustee.
(p) Xxxxxxxx Xxxxx Xxxxxxxxx, LLC, special Kansas tax counsel for the Issuer and Atmos Energy, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding certain Kansas income tax matters.
(q) Hunton Xxxxxxx Xxxxx LLP, in its limited capacity as special Virginia counsel to Atmos Energy, shall have furnished to the Underwriter their written opinion, in form and substance reasonably satisfactory to the Underwriter, dated the Closing Date, regarding certain corporate matters relating to Atmos Energy.
(r) On or before the date of this Underwriting Agreement and on or before the Closing Date, a nationally recognized accounting firm reasonably acceptable to the Underwriter shall have furnished to the Underwriter one or more reports regarding certain calculations and computations relating to the Bonds, in form or substance reasonably satisfactory to the Underwriter, in each case in respect of which the Underwriter shall have made specific requests therefor and shall have provided acknowledgment or similar letters to such firm reasonably necessary in order for such firm to issue such reports.
(s) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in each of the Registration Statement (exclusive of any amendment thereof) Statement, the Preliminary Prospectus and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph certificates required by subsection (iw) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, 9 which is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities Bonds as contemplated by the Registration Statement and the Prospectus.
(exclusive of any amendment thereof)t) The LLC Agreement, the Disclosure Package Administration Agreement, the Sale Agreement, the Servicing Agreement and the Prospectus (exclusive of Indenture and any amendment or supplement thereto)to any of the foregoing shall have been executed and delivered.
(ku) Subsequent to Since the Execution Time, respective dates as of which information is given in each of the Registration Statement and in the Preliminary Prospectus and as of the Closing Date there shall not have been any decrease no (i) material adverse change in the rating business, property or financial condition of any Atmos Energy and its subsidiaries, taken as a whole, whether or not in the ordinary course of business, or of the Company’s Issuer or (ii) adverse development concerning the business or assets of Atmos Energy and its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (, taken as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating a whole, or of the Issuer which would be reasonably likely to result in an Atmos Energy Material Adverse Effect or Issuer Material Adverse Effect, as the case may be, or (iii) development which would be reasonably likely to result in a possible change material adverse change, in any such rating that does not indicate the direction of Securitized Utility Tariff Property, the possible changeBonds or the Financing Order.
(lv) Prior to At the Closing Date, (i) the Company Bonds shall be rated at least the ratings set forth in the Pricing Term Sheet by Fitch Ratings, Inc. (“Fitch”) and Xxxxx’x Investors Service, Inc. (“Moody’s”), respectively, and the Selling Stockholder Issuer shall have delivered to the Underwriter a letter from each such rating agency, or other evidence satisfactory to the Underwriter, confirming that the Bonds have such ratings, and (ii) none of Fitch and Moody’s shall have, since the date of this Underwriting Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Bonds.
(w) The Issuer and Atmos Energy shall have furnished or caused to be furnished to the Underwriter at the Closing Date certificates of officers of Atmos Energy and the Issuer, reasonably satisfactory to the Underwriter, as to the accuracy of the representations and warranties of the Issuer and Atmos Energy herein, in the Sale Agreement, Servicing Agreement and the Indenture at and as of the Closing Date, as to the performance by the Issuer and Atmos Energy of all of their obligations hereunder to be performed at or prior to such further informationClosing Date, certificates as to the matters set forth in subsections (b) and documents (v) of this Section and as to such other matters as the Underwriter may reasonably request.
(mx) The Securities An issuance advice letter, in a form consistent with the provisions of the Financing Order, shall have been listed filed with the KCC and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided become effective.
(y) On or prior to the Closing Date, the Issuer shall have delivered to the Underwriter evidence, in form and substance reasonably satisfactory to the Underwriter, that appropriate filings have been or are being made in accordance with Kansas Utility Financing and Securitization Act, codified at K.S.A. §§ 66-1,240 - 66-1,253, the Financing Order and other applicable law reflecting the grant of a security interest by the Issuer in the collateral relating to the Bonds to the Indenture Trustee, including the filing of the requisite financing statements in the UCC records of the office of the Secretary of State of the State of Kansas.
(z) On or prior to the Closing Date, Atmos Energy shall have funded the capital subaccount of the Issuer with cash in an amount equal to $475,000.
(aa) The Issuer and Atmos Energy shall have furnished or caused to be furnished or agree to furnish to the Rating Agencies at the Closing Date such opinions and certificates as the Rating Agencies shall have reasonably requested prior to the Closing Date. Any opinion letters delivered on the Closing Date to the Rating Agencies beyond those being delivered to the Underwriter above shall either (x) include the Underwriter as addressee or (y) be accompanied by reliance letters addressed to the Underwriter referencing such letters. If any of the conditions specified in this Section 6 9 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions opinion letters and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel Counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Issuer 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Atmos Energy Kansas Securitization I, LLC)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, Xxxx LLP shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall Deloitte & Touche LLP will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-6, Class 1A-1, Class 2A-1, Class 2A-2 and Class 2A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”) and “Aaa” by Xxxxx’x Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB-” by S&P and “Baa3” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
(e) The Underwriter shall have received the opinion of the Counsel to the Trustee, substantially to the effect set forth in Exhibit B.
(f) The Underwriter shall have received the opinion of the Counsel, dated as of the Closing Date, to the Servicer in form and substance satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto)date hereof, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or Depositor, which the Underwriter concludes in its subsidiaries taken as a whole, whether or not arising from transactions in judgment materially impairs the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment investment quality of the Underwriter, Certificates so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(kh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder The Depositor shall have furnished to the Underwriter such further information, certificates and documents as any other opinion of counsel delivered to the Underwriter may reasonably requestRating Agencies in connection with the rating of the Certificates.
(mi) The Securities Underwriter shall have been listed and admitted and authorized received an indemnification letter from the Servicer for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been information provided to by the UnderwriterServicer for inclusion in the Prospectus Supplement. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriterits counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Depositor in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Home Equity Mortgage Trust 2006-6)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 3, hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxx & XxxxXxxxxxxx London LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused XxxxxxXxxxxx and Calder, Halter & Xxxxxxxx LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinion, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit D.Underwriter.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fd) The Underwriter shall have received from Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx (UK) LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Xxxxxx to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing DateDate and any settlement date, as applicable, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder's Subscription Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, if applicable, the last sentence of Section 3 shall be delivered at the office of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx (UK) LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 00 Xxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx 00000Xxxxxx Xxxxxxx, X00 0XX, Attention: Xxxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Mountain & Co. I Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially as set forth in the form attached hereto as Exhibit D.B.
(ec) The Selling Stockholder Company shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLPYoung, PLLC, regulatory counsel for the Selling StockholderCompany, to have furnished to the Underwriter its opinion opinion, dated the Closing Date, Date and addressed to the Underwriter and substantially as set forth in the form attached hereto as Exhibit E.C.
(fd) Certain Selling Stockholders shall have requested and caused Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for OCM Spirit Holdings III-A, LLC, POF Sprit Domestic Holdings, LLC and POF Spirit Foreign Holdings, LLC to have furnished to the Underwriter their opinions, dated the Closing Date for the Securities and addressed to the Underwriter as set forth in Exhibit D.
(e) The Underwriter shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any amendment or supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed executed on its behalf by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s 's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hg) The Each Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, if applicable, or an attorney-in-fact on behalf of such Selling Stockholder, dated the Closing Date, to the effect that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to the same effect as if made on be performed or satisfied at or prior to the Closing Date.
(ih) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter., to the effect set forth in Exhibit E.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder Stockholders shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the each Selling Stockholder 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 Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, Xxxx LLP shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall Deloitte & Touche LLP will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s CSMC Pass-Through Certificates, Series 2007-NC1 OSI, Class 1-A, Class 2-A-1, Class 2-A-2 and Class R Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”) and Fitch, Inc. (“Fitch”). The Class M-1 Certificates shall have been rated “AA+” by S&P and Fitch. The Class M-2 Certificates shall have been rated “AA” by S&P and “AA+” by Fitch. The Class M-3 Certificates shall have been rated “AA-” by S&P and Fitch. The Class M-4 Certificates shall have been rated “A+” by S&P and Fitch. The Class M-5 Certificates shall have been rated “A” by S&P and Fitch. The Class M-6 Certificates shall have been rated “A-” by S&P and rated “A” by Fitch. The Class M-7 Certificates shall have been rated “BBB+” by S&P and rated “A-” by Fitch. The Class M-8 Certificates shall have been rated “BBB” by S&P and rated “BBB+” by Fitch. The Class M-9 Certificates shall have been rated “BBB-” by S&P and rated “BBB” by Fitch.
(e) The Underwriter shall have received the opinion of the Counsel to the Trustee, substantially to the effect set forth in Exhibit B.
(f) The Underwriter shall have received the opinion of the Counsel, dated as of the Closing Date, to the Servicer in form and substance satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto)date hereof, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or Depositor, which the Underwriter concludes in its subsidiaries taken as a whole, whether or not arising from transactions in judgment materially impairs the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment investment quality of the Underwriter, Certificates so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(kh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder The Depositor shall have furnished to the Underwriter such further information, certificates and documents as any other opinion of counsel delivered to the Underwriter may reasonably requestRating Agencies in connection with the rating of the Certificates.
(mi) The Securities Underwriter shall have been listed and admitted and authorized received an indemnification letter from the Servicer for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been information provided to by the UnderwriterServicer for inclusion in the Prospectus Supplement. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriterits counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Depositor in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (CSMC Asset-Backed Trust 2007-Nc1)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxxxx & XxxxXxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in form and substance reasonably satisfactory to the form attached hereto as Exhibit D.Underwriter.
(ec) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx Xxxxx LLP, counsel for the Selling Stockholder, to Stockholders shall have furnished to the Underwriter its opinion written opinion, dated the Closing Date, Date and addressed to the Underwriter Underwriter, in form and substantially in substance reasonably satisfactory to the form attached hereto as Exhibit E.Underwriter.
(fd) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersmatters as the Underwriter reasonably requests.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hf) The Each Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative signatory of the such Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, dated the Closing Date, to the effect that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ig) The Company shall have requested and caused each of Ernst Deloitte & Young Touche LLP and KPMG Xxxxx Xxxxxxx LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(sletters (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(jh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ig) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ki) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder Stockholders shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the each Selling Stockholder 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, Xxxx LLP shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall Deloitte & Touche LLP will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent , to the Execution Time or, if earlier, the dates effect that they have performed certain specified procedures as a result of which they have determined that such information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably requestrequest of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(md) The Securities Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-5, Class A-1, Class A-2, Class A-3, and Class A-IO Certificates shall have been listed rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”), “AAA” by Dominion Bond Rating Service (“DBRS”) and admitted and authorized for trading on the New York Stock Exchange“Aaa” by Xxxxx’x Investors Service, and satisfactory evidence of such actions Inc. (“Moody’s”). The Class M-1 Certificates shall have been provided to the Underwriterrated “AA+” by S&P, “AA (high)” by DBRS and “Aa1” by Moody’s. If any of the conditions specified in this Section 6 The Class M-2 Certificates shall not have been fulfilled when rated “AA” by S&P, “AA” by DBRS and as provided 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 Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date “Aa2” by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writingMoody’s. The documents required to be delivered Class M-3 Certificates shall have been rated “AA-” by this Section 6 S&P, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLPhave been rated “A+” by S&P, counsel for the Underwriter“A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, 000 Xxxxxxxxx Xxxxxx“A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, Xxx Xxxx“A (low)” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, Xxx Xxxx 00000“A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, on the Closing Date.“BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB-” by S&P, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Samples: Underwriting Agreement (Home Equity Mortgage Trust 2006-5)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities hereunder shall be subject subject, in its discretion, to the accuracy of the condition that all representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the other statements of the Company and the Selling Stockholder made in any certificates pursuant to Stockholders herein are, at and as of the provisions hereofdate hereof and the Time of Delivery, to true and correct, the performance by condition that the Company and the Selling Stockholder of Stockholders shall have performed all their respective obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx llp, counsel for the Underwriter, such opinion or opinions, dated the Closing Date Time of Delivery and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) Shares and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gb) The Company Xxxxxxxx & Xxxxx LLP, counsel for the Company, shall have furnished to you their written opinions, dated the Underwriter a certificate Time of Delivery, substantially in the form of Annex C hereto.
(c) Xxxxx Xxxxxx Xxxxxxxx LLP, special regulatory counsel to the Company, signed shall have furnished to you their written opinion, dated the Time of Delivery, substantially in the form of Annex D hereto.
(d) Xxxxx Xxxx & Xxxxxxxx LLP, counsel to the Selling Stockholders, shall have furnished to you their written opinion with respect to the Selling Stockholders, dated the Time of Delivery, in form and substance satisfactory to you, substantially in the form of Annex E hereto.
(e) At the Time of Delivery, the Shares shall have been approved for listing on NASDAQ.
(f) On the date of the Time of Sale Information and also at the Time of Delivery, KPMG LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(i) None of the Company or any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus, and (ii) since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus (for clarification purposes, this excludes any amendment or supplement to the each of the Registration Statement, the Time of Sale Information and the Prospectus on or after the date of this Agreement) there shall not have been any change in the capital stock, limited liability company interests, partnership interests or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' or members' equity, or results of operations of the Company or any of its subsidiaries, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Underwriter so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the sale or delivery of the Shares on the terms and in the manner contemplated in this Agreement and in the Time of Sale Information and the Prospectus;
(h) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Company or any debt securities or preferred stock issued or guaranteed by the Company by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Company or of any debt securities or preferred stock issued or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading);
(i) The Shares shall be eligible for clearance and settlement through DTC;
(j) At the Time of Delivery, the Underwriter shall have received a written certificate executed by the Chairman of the Board or the Board, Chief Executive Officer or the principal financial or accounting officer President of the Company, dated as of the Closing DateTime of Delivery, certifying as to the matters set forth in subsections (g) and (h) of this Section 8, and further to the effect that:
(i) the representations representations, warranties and warranties covenants of the Company in this Agreement set forth herein were true and correct as of the date hereof and are true and correct as of the Time of Delivery with the same force and effect as though expressly made on and as of the Closing Date Time of Delivery;
(ii) the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of the Registration Statement is in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act is pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus has been timely filed with the same effect as if made on Commission under the Closing Date Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information have been complied with; and
(iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;Time of Delivery.
(k) At the Time of Delivery, the Underwriter shall have received a written certificate executed by a senior officer of each Selling Stockholder, dated as of the Time of Delivery, certifying to:
(i) the representations, warranties and covenants of such Selling Stockholder set forth herein were true and correct as of the date hereof and are true and correct as of the Time of Delivery with the same force and effect as though expressly made on and as of the Time of Delivery; and
(ii) such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Time of Delivery.
(l) The Underwriter shall have received a Form W-9 or Form W-8, as applicable, from each Selling Stockholder.
(m) The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued shall be in effect, and no proceedings proceeding for that purpose such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been instituted or, to timely filed with the Company’s knowledge, threatened; and
Commission under the Securities Act (iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLPan Issuer Free Writing Prospectus, at to the Closing Date, letter(s), dated respectively as extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(jn) Subsequent to On or before the Execution Time orof Delivery, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the UnderwriterUnderwriter shall have received such information, this Agreement documents and all obligations opinions as they may reasonably require for the purposes of enabling them to pass upon the offer and sale of the Underwriter hereunder may be canceled atShares as contemplated herein, or at in order to evidence the accuracy of any time prior toof the representations and warranties, or the Closing Date by satisfaction of any of the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing conditions 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 Xxxxx Xxxx & Xxxxxxxx LLPagreements, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Dateherein contained.
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications, Inc. /Mo/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and Applicable Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, LiptonBass, Xxxxx & XxxxXxxx PLC, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in form and substance satisfactory to the form attached hereto as Exhibit D.Underwriter.
(ec) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated On the Closing Date, addressed the Underwriter shall have received the favorable opinion of Bass, Xxxxx & Xxxx PLC, regulatory counsel for the Company, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and substantially in the form attached hereto as Exhibit E.Underwriter.
(fd) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Stockholders shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Selling Stockholders shall have requested and caused Simpson, Thacher & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
(f) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package and the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Change.
(hg) The Selling Stockholder Underwriter shall have furnished to the Underwriter received a certificate, signed by an authorized representative certificate of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholders, dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder Stockholders in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ih) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter Underwriter, at the Execution Applicable Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s(i) letters (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Execution Applicable Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, confirming that they are independent accountants with respect to the Company within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended, and as at September 30, 2013 and 2014, in accordance with Statement on Auditing Standards No. 100, and (ii) letters (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Applicable Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, confirming that they are independent accountants with respect to Sheridan within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of Sheridan for the nine-month period ended, and as at September 30, 2013 and 2014, in accordance with Statement on Auditing Standards No. 100 and, in each of cases (i) and (ii), containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(ji) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties operations of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lk) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(ml) The Prior to the Closing Date, the Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq Global Select Market, subject to notice of official issuance and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Stockholders 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Amsurg Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company and the Selling Stockholder Depositor contained herein as of the Execution Time date hereof and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Depositor of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, Xxxx LLP shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriteropinions, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed substantially to the Underwriter and substantially effect set forth in the form attached hereto as Exhibit E.A.
(fb) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Depositor shall have furnished to the Underwriter a certificate of the CompanyDepositor, signed by the Chairman of the Board President, Senior Vice President or the Chief Executive Officer or the principal financial or accounting officer of the Companyany Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) the The representations and warranties of the Company Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his knowledge, threatened; and
(iii) since Nothing has come to his attention that would lead him to believe that the date Registration Statement, as of the most recent financial Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements included therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the Disclosure Package and light of the Prospectus (exclusive of any supplement thereto)circumstances under which they were made, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)not misleading.
(hc) The Selling Stockholder shall Deloitte & Touche LLP will have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-3, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by Xxxxx’x Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-3 Certificates shall have been rated “AA-“ by S&P, “AA-“ by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “A3” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa1” by Moody’s. The Class M-9 Certificates shall have been rated “BBB-” by S&P, “BBB” by Fitch, “BBB” by DBRS and “Baa2” by Moody’s. The Class M-10 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and Baa3 by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
(e) The Underwriter shall have received the opinion of the Counsel to the Trustee, substantially to the effect set forth in Exhibit B.
(f) The Underwriter shall have received the opinion of the Counsel, dated as of the Closing Date, to the Servicers in form and substance satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto)date hereof, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or Depositor, which the Underwriter concludes in its subsidiaries taken as a whole, whether or not arising from transactions in judgment materially impairs the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment investment quality of the Underwriter, Certificates so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(kh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder The Depositor shall have furnished to the Underwriter such further information, certificates and documents as any other opinion of counsel delivered to the Underwriter may reasonably requestRating Agencies in connection with the rating of the Certificates.
(mi) The Securities Underwriter shall have been listed and admitted and authorized received indemnification letters from each of the Servicers for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been information provided to by each respective servicer for inclusion in the UnderwriterProspectus Supplement. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriterits counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Depositor in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2006-3)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Each of the Preliminary Prospectus, the Prospectus, and any supplement thereto, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellSkadden, LiptonArps, Xxxxx Slate, Xxxxxxx & XxxxXxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersopinions, dated the Closing Date and addressed to the Underwriter, substantially in the form forms attached hereto as Exhibit B.
(c) The Exhibits B and C, and Xxxxxxxx X. Xxxxxxx, General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its her opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(ec) The Selling Stockholder Company shall have requested and caused Xxxxxxx Xxxxxxx (i) Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, special regulatory counsel for the Selling StockholderCompany, to have furnished to the Underwriter its opinion their opinion, dated the Closing Date, Date and addressed to the Underwriter and Underwriter, substantially in the form attached hereto as Exhibit E.E and (ii) (A) Xxxxxx & Xxxxxxxx P.C., and (B) Xxxxxxxx & Xxxxxxx LLP, special intellectual property counsels for BML and the Company, respectively, to have furnished to the Underwriter their opinions, each dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit F.
(fd) The Selling Stockholders shall have requested and caused Xxxxx X. Xxxxxxx XX, Esq., Kleinberg, Kaplan, Xxxxx & Xxxxx and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and such other counsel to the Selling Stockholders as are reasonably acceptable to the Underwriter, to have furnished to the Underwriter their respective opinions dated the Closing Date and addressed to the Underwriter, covering the matters specified in Exhibit G.
(e) The Underwriter shall have received from Xxxxx Xxxx Debevoise & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) The Selling Stockholder Stockholders shall have furnished to the Underwriter a certificate, signed by an authorized representative on behalf of the Selling Stockholder reasonably acceptable to counsel Stockholders and delivered pursuant to the Underwriter Custody Agreement, dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder Stockholders in this Agreement are true and correct in all material respects on and as of the Closing Date to with the same effect as if made on the Closing Date.
(ih) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLPa letter, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the UnderwriterUnderwriter and which should cover, among other customary matters, the Preliminary Prospectus as filed pursuant to Rule 424(b) prior to the Execution Time (including the documents incorporated by reference therein).
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder Stockholders shall have furnished to the Underwriter such further information, customary closing and secretary certificates and documents as the Underwriter may reasonably request, including, without limitation, Forms W-8 or W-9, as required, from the Selling Stockholders.
(mk) The Securities shall have been listed and admitted and authorized duly approved for trading quotation on the New York Stock ExchangeNasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(l) As soon as practicable following the Execution Time and prior to the Closing Date, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from Endo Pharma LLC and each executive officer and director of the Company, addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Stockholders 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Skadden Offices on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Endo Pharmaceuticals Holdings Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase borrow the Underwritten Securities and pay the Loan Fee as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(ai) The If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(ii) If, at or subsequent to the Execution Time it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective, the Registration Statement or such post-effective amendment shall have become effective no later than such date and time as consented to in writing by the Underwriter, and all filings, if any, required by Rules 424(b) and 430A under the Act shall have been timely made.
(b) The Company shall have requested and caused WachtellGxxxxx, Lipton, Xxxxx Dxxx & XxxxCxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letterstheir opinion, dated the Closing Date and addressed to the Underwriter, substantially covering such matters as are typically provided in the opinions delivered in connection with underwritten equity offerings, in form attached hereto as Exhibit B.and substance reasonably satisfactory to you.
(c) Cxxx, Raywid & Bxxxxxxxx L.L.P., special regulatory counsel to the Company, shall have furnished to you their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to you, to the effect that:
(i) The issue and sale of the Underwritten Securities and the compliance by the Company with the Share Lending Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Company or any of its subsidiaries or any of their property is subject; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of this Agreement and the Share Lending Agreement and the consummation of the transactions herein and therein contemplated; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in the Prospectus under the caption “Regulation and Legislation” and under the caption “Risk Factors” under the subheading “Risks Related to Regulatory and Legislative Matters,” insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(iv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Company’s and the Company’s subsidiaries’ management, the Company and its subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television industry, to such counsel’s knowledge, based solely upon its review of the publicly available records of the FCC and upon inquiry of the Company’s and its subsidiaries’ management, during the time the cable systems of the Company and its subsidiaries have been owned by the Company and its subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the FCC relating to the ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its subsidiaries or any cable system of the Company or any of its subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
(d) The General Counsel of the Company, shall have furnished to the Underwriter her opinion his written opinion, dated as of the Closing Date Date, in form and addressed substance satisfactory to you, to the Underwritereffect that:
(i) Each subsidiary of the Company listed on a schedule attached to such counsel’s opinion (collectively, substantially the “Charter Subsidiaries”) has been duly incorporated or formed, as the case may be, and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation; and all the issued shares of capital stock, limited liability company interests or partnership interests, as the case may be, of each Charter Subsidiary are set forth on the books and records of the Company and, except for those Charter Subsidiaries that are general partners, assuming receipt of requisite consideration therefor, are fully paid and nonassessable (in the form attached hereto case of corporate entities) and not subject to additional capital contributions (in the case of limited liability company entities and limited partnerships); and, except as Exhibit C.
(d) The Company shall have requested otherwise set forth in the Prospectus, and caused Xxxxxxexcept for liens not prohibited under the credit agreements listed on such schedule, Halter & Xxxxxxxx LLP, Ohio counsel for all outstanding shares of capital stock of each of the Charter Subsidiaries are owned by the Company, either directly or indirectly or through wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(ii) Each of the Company and the Charter Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company, or any of the Charter Subsidiaries is party or of which any property of the Company or any of the Charter Subsidiaries is the subject, of a character required to be disclosed in the Registration Statement, which is not so disclosed, except for such proceedings which are not likely to have, individually or in the aggregate, a Material Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Prospectus, no such proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of the Share Lending Agreement and the consummation of the transactions therein contemplated will not result in a violation of the provisions of the certificate of incorporation or by-laws, or certificate of formation or limited liability company agreement or partnership agreement, as the case may be, of any of the Charter Subsidiaries.
(e) At the Execution Time and also on the Closing Date, KPMG LLP shall have furnished to the Underwriter its opiniona “comfort” letter or letters of the type customarily provided in connection with underwritten equity offerings, dated the Closing Date respective dates of delivery thereof, in form and addressed substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.;
(f) The Underwriter shall have received from Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Mxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinions as are customarily provided by underwriters' counsel in connection with the registration of equity securities in underwritten offerings on Form S-1, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Underwritten Securities, the Registration Statement, the Disclosure Package, Statement and the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s 's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Underwritten Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package thereto) and the Prospectus (exclusive of any amendment or supplement thereto).
(ki) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ 's debt securities by any “nationally recognized statistical rating organization” (as defined used for purposes of Rule 3(a)(62436(g) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Underwritten Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation cancelation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Mxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase and pay for the Securities shall Certificates will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholder Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Bank of their respective its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof the Underwriter shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of each of Price Waterhouse LLP and Xxxxxx Xxxxxxxx verifying the accuracy of such financial and statistical data contained in the Prospectus as the Underwriter shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Underwriter shall have received a letter dated the Closing Date confirming the Procedures Letter and providing additional comfort on such new data;
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, The Chase Manhattan Bank or The Chase Manhattan Corporation which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Certificates or makes it impractical to market the Certificates; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, The Chase Manhattan Bank or The Chase Manhattan Corporation on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by Federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Certificates;
(d) The Company Underwriter shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersreceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the CompanyXxxxxxx Xxxxxxx & Xxxxxxxx, shall have furnished special counsel to the Underwriter her opinion dated Bank, Xxxxxxxx, Xxxxxx & Finger, special counsel to the Closing Date Trust, and addressed such other counsel otherwise reasonably acceptable to the Underwriter, substantially in with respect to such matters as are customary for the form attached hereto as Exhibit C.type of transaction contemplated by this Agreement;
(de) The Company Underwriter shall have requested and caused Xxxxxxreceived an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, Halter & Xxxxxxxx LLP, Ohio special counsel for the Company, to have furnished to the Underwriter its opinionBank, dated the Closing Date and addressed satisfactory in form and substance to the Underwriter, substantially with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished Receivables to the Underwriter its Indenture Trustee, and an opinion dated the Closing Dateof Xxxxxxxx, addressed Xxxxxx & Finger, Special Counsel to the Underwriter Trust, with respect to the perfection of the Trust's and substantially the Indenture Trustee's interests in the form attached hereto as Exhibit E.Receivables;
(f) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for to the Underwriter, such opinion or opinions, dated the Closing Date and addressed satisfactory in form and substance to the Underwriter, with respect to the sale validity of the SecuritiesCertificates, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.;
(g) The Company Underwriter shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(h) The Underwriter shall have received an opinion of counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriter a certificate with respect to such matters as are customary for the transactions contemplated by this Agreement; In rendering such opinions, counsel to the Indenture Trustee may rely on the opinion of the Company, signed by the Chairman office of the Board or general counsel to the Chief Executive Officer or Indenture Trustee.
(i) The Underwriter shall have received an opinion of counsel to the principal financial or accounting officer Owner Trustee, and such other counsel reasonably satisfactory to the Underwriter and its counsel, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of the Companytransaction contemplated by this Agreement;
(j) The Certificates have been rated "A+" by Standard & Poor's, A2 by Moody's and "A1" by Fitch;
(k) The Underwriter shall have received a certificate, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Bank in which such person, to the effect that:
best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder Bank in this Agreement are true and correct in all material respects on and as of the Closing Date Date, (ii) that the Bank has complied with all agreements and satisfied all conditions on its part to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP be performed or satisfied hereunder at or prior to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)(iii) the representations and warranties of the Bank, dated respectively as Seller and Servicer, in the Sale and Servicing Agreement and, as Depositor, in the Trust Agreement, are true and correct as of the Execution Time anddates specified in the Sale and Servicing Agreement and the Trust Agreement, if applicable, as (iv) that no stop order suspending the effectiveness of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, (exclusive v) that, subsequent to the date of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have has been (i) any no material adverse change or decrease specified in the letter financial position or letters referred to in paragraph (i) results of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties operation of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, Bank's automotive finance business except as set forth in or contemplated in the Disclosure Package and by the Prospectus or as described in such certificate and (exclusive of any amendment or supplement theretovi) the effect Prospectus does not contain any untrue statement of whicha material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in any case referred to in clause (i) or (ii) above, is, in the sole judgment light of the Underwritercircumstances in which they were made, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.misleading;
(l) Prior to On the Closing Date, all of the Company Notes shall have been issued and sold pursuant to the Note Underwriting Agreement; and
(m) The Class A-1 Notes shall have been rated "A- 1+" by Standard & Poor's, "P-1" by Moody's and "F-1+" by Fitch, and the Selling Stockholder Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class A-5 Notes shall have furnished to been rated "AAA" by Standard & Poor's, Aaa by Moody's and "AAA" by Fitch. The Bank will furnish the Underwriter, or cause the Underwriter to be furnished, with such further informationnumber of conformed copies of such opinions, certificates certificates, letters and documents as the Underwriter may reasonably requestrequests.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Certificate Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the Closing Date pursuant to Section 3 hereofcase may be, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) : The Prospectus, Registration Statement has become effective and any supplement thereto, have been filed in at the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and no proceedings any request on the part of the Commission for that purpose additional information from the Company shall have been instituted or threatened.
(b) The Company complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have requested been filed with the Commission in the manner and caused Wachtellwithin the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, Liptonthe Underwriter shall have received (i) the favorable opinion, Xxxxx dated as of the Closing Time, of Xxxxxx & XxxxXxxxxx L.L.P., counsel for the Company, in form and substance satisfactory to have furnished counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter its opinion may reasonably request, and negative assurance letters(ii) the favorable opinion, dated as of the Closing Date and addressed to Time, of the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter her opinion dated may reasonably request. At the Closing Date and addressed to Time, the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from the favorable opinion, dated as of the Closing Time, of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date in form and addressed substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, with respect as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the sale Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and officers of the Company and the Selling Stockholder its subsidiaries and certificates of public officials. The Underwriter shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter received a certificate of the Company, signed by the Chairman President or a Vice President of the Board or Company and of the Chief Executive Officer or the principal chief financial or chief accounting officer of the Company, dated as of the Closing DateTime, to the effect that:
that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in this Agreement Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date and Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
Time, and (iiiv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted oror are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Company’s knowledge, threatened; and
(iii) since the date Underwriter containing statements and information of the most recent type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements included and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus. At the Closing Time, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder Underwriter shall have furnished to the Underwriter received from Ernst & Young LLP a certificateletter, signed by an authorized representative dated as of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing DateTime, to the effect that they reaffirm the representations and warranties statements made in the letter furnished pursuant to subsection (e) of this Section, except that the Selling Stockholder in this Agreement are true and correct in all material respects on and as of specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date to the same effect of Delivery, as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLPmay be, at there shall not have been, since the Closing Date, letter(s), dated respectively as of date hereof or since the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Prospectus and the Prospectus (exclusive of General Disclosure Package, any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the managementcondition, condition (financial or otherwise), or in the earnings, business business, prospects, properties or properties results of operations of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, isthat, in the sole reasonable judgment of the Underwriter, so material and adverse as makes it impracticable to make it impractical or inadvisable to proceed with the offering or delivery of market the Securities as on the terms and in the manner contemplated by in the Registration Statement (exclusive of any amendment thereof)Prospectus. At the Closing Time, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized approved for trading listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and satisfactory evidence each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such actions shall have been provided to Date of Delivery. Opinions of Counsel for Company. The favorable opinions of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriter. If any Company, and the General Counsel of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this AgreementCompany, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance satisfactory to the Underwriter and counsel for the Underwriter, this Agreement and all obligations dated such Date of the Underwriter hereunder may be canceled atDelivery, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given relating to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required Option Securities to be delivered purchased on such Date of Delivery and otherwise to the same effect as the opinions required by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date6(b) hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Applicable Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxx & XxxxXxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to the Underwriter, in substantially in the form attached hereto as Exhibit D.A.
(ec) Xxxxx X. Xxxxxxxxx, Esq. shall have furnished to the Underwriter his written opinion, as Senior Vice President/General Counsel and Corporate Secretary of the Company (and not in his capacity as Chief Financial Officer), dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit B.
(d) The Selling Stockholder Stockholders shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholderStockholders, to have furnished to the Underwriter its opinion their opinions dated the Closing Date, Date and addressed to the Underwriter and Underwriter, in substantially in the form attached hereto as Exhibit E.C.
(fe) The Underwriter shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company Company, and the Selling Stockholder Stockholders shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Final Prospectus, any amendments or supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hg) The Each Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative or on behalf of the such Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, dated the Closing Date, to the effect that the signer(s) of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ih) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter Underwriter, at the Execution Applicable Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Applicable Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the UnderwriterUnderwriter (x) confirming that it is an independent public accountant under the guidelines of the AICPA and (y) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package and the Final Prospectus, as of a date not more than three days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters covered by accountants “comfort letters” to underwriters in connection with registered public offerings.
(ji) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(j) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(k) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under the Exchange Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange.
(m) As of the date of this Agreement, and satisfactory evidence of such actions the Underwriter shall have been provided received a “lock-up” agreement addressed to the UnderwriterUnderwriter substantially in the form of Exhibit D hereto from each shareholder of the Company listed on Schedule V hereto (each such letter, a “Lock-up Agreement”). If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the each Selling Stockholder 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 Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxx & XxxxXxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, their opinions dated the Closing Date and addressed to the Underwriter, substantially Underwriter in the form attached hereto forms set forth as Exhibit B.Exhibits B -1 and B-2 hereto.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its their opinion dated the Closing Date, Date and addressed to the Underwriter and substantially Underwriter, in the form attached hereto set forth as Exhibit E.C hereto.
(fd) The Chief Legal Officer of the Company shall have furnished to the Underwriter his opinion dated the Closing Date and addressed to the Underwriter, in the form set forth as Exhibit D hereto.
(e) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Bird LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, if qualified by materiality, or true and correct in all material respects, if not qualified by materiality, on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied in all material respects at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hg) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ih) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(sletters (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the UnderwriterUnderwriter (i) confirming that it is an independent public accountant under the guidelines of the American Institute of Certified Public Accountants and (ii) stating, as of such date, or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package and the Final Prospectus, as of a date not more than three days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters covered by accountants “comfort letters” to underwriters in connection with registered public offerings.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) At the Execution Time, the Company shall have delivered to the Underwriter a letter in substantially the form of Exhibit A hereto from each officer of the Company listed on Schedule V addressed to the Underwriter.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx Bird LLP, counsel for the Underwriter, 000 at One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxx Xxxxxxx & XxxxXxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its their opinion and negative assurance lettersletter, each dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit B.B-1 and Exhibit B-2 hereto.
(c) The Underwriter shall have received on the Closing Date an opinion of H. Xxxxxxxxx Xxxxx, Vice President, General Counsel and Secretary of the Company, dated the Closing Date, to the effect set forth in Exhibit C. Such opinion shall have furnished be rendered to the Underwriter her opinion dated at the Closing Date request of the Company and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.shall so state therein.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx XxXxxxxxx Will & Xxxxxxxx Xxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its their opinion dated the Closing Date, Date and addressed to the Underwriter and substantially Underwriter, to the effect set forth in the form attached hereto as Exhibit E.D.
(fe) The Underwriter shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the offer and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the a principal financial or accounting officer of the Company, on behalf of the Company and not in his or her individual capacity, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date (other than those representations and warranties which are made as of a specific date) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus, there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(hg) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an one or more authorized representative officers of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, dated the Closing Date, to the effect that the signer(s) of such certificate have reviewed the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto with respect to the Selling Stockholder Information and this Agreement, and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ih) The Company Underwriter shall have requested and caused received from each of KPMG, the independent registered public accounting firm for the Company, and Ernst & Young LLP and KPMG LLP to have furnished Young, the independent registered public accounting firm for Diversey Holdings, a “comfort letter” dated the date hereof addressed to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing DateUnderwriter, in form and substance reasonably satisfactory to the Underwriter, covering the relevant financial information in the Disclosure Package and other customary matters. In addition, on the Closing Date, the Underwriter shall have received from each such accountant a “bring-down comfort letter” dated the Closing Date addressed to the Underwriter, in form and substance satisfactory to the Underwriter, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the relevant financial information in the Final Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule Section 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(l) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the Company’s stockholders listed in Schedule V hereto, addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, or at such other location as determined in accordance with Section 3 of this Agreement, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); ) and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellXxxx, LiptonWeiss, Xxxxx Rifkind, Xxxxxxx & XxxxXxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letterstheir opinion, dated the Closing Date and addressed to the Underwriter, Underwriter substantially in the form attached hereto as set forth in Exhibit B.B hereto.
(c) The General Counsel of Selling Stockholders shall have requested and caused Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the CompanySelling Stockholders, shall to have furnished to the Underwriter her their opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as set forth in Exhibit C.C hereto.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hf) The Each Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ig) The Company shall have requested and caused each of Ernst & Young LLP (with respect to the Company) and KPMG LLP Ernst & Young (with respect to OPI) to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(saccountant’s “comfort” letters (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, and in the case of the letters dated as of the Execution Time, substantially in the form of Exhibit D and Exhibit E hereto, respectively.
(jh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ki) Subsequent to At the Execution Time, there the Company shall not have been any decrease furnished to the Underwriter a letter substantially in the rating form of any Exhibit A hereto from each of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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 officers and directors of the possible changeCompany listed on Schedule VI and addressed to the Underwriter.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder Stockholders shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the each Selling Stockholder 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 Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein in this Agreement as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder under this Agreement and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b)) under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433433 under the Act; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any notice objecting to its their use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellXxxxxx & Xxxxxxx LLP, Lipton, Xxxxx & Xxxx, United States counsel for the Company, to have furnished to the Underwriter (i) its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as of Exhibit C.B hereto, and (ii) its tax opinion dated the Closing Date and and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
(dc) The Company shall have requested and caused XxxxxxXxxxxxx Xxxx & Xxxxxxx, Halter & Xxxxxxxx LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinion, opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as of Exhibit D.C hereto.
(d) The Company shall have requested and caused Fangda Partners, PRC counsel for the Company, to have furnished to the Company its opinion dated the Closing Date, substantially in the form of Exhibit D hereto, together with a consent letter permitting the Company to provide its opinion to the Underwriter; such consent letter shall be in form and substance satisfactory to the Underwriter.
(e) The Selling Stockholder Depositary shall have requested and caused Xxxxxxx Xxxxxxx, Xxxxxxx & Xxxxxxxx Associates, LLP, counsel for the Selling StockholderDepositary, to have furnished to the Underwriter its opinion dated the Closing Date, Date and addressed to the Underwriter and Underwriter, substantially in the form attached hereto as of Exhibit E.E hereto.
(f) The Underwriter shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, United States counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP such documents as they it may reasonably request for the purpose of enabling them it to pass upon such matters.
(g) The Underwriter shall have received from King and Wood, PRC counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to certain issues under PRC law relating to the transactions contemplated hereunder and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to King and Wood such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(h) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman chairman of the Board board or the Chief Executive Officer or chief executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the ADR Registration Statement or the Registration Statement or of any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and;
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).; and
(hiv) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative true and complete copy of the Selling Stockholder reasonably acceptable to legal opinion of Fangda Partners, PRC counsel to for the Underwriter Company, dated the Closing Date, is attached as an exhibit to the effect that the representations such certificate and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Datesuch opinion has not been amended or withdrawn.
(i) The Company shall have requested and caused each of Ernst Deloitte Touche & Young LLP and KPMG LLP Tohmatsu CPA Ltd. to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect set forth in Exhibit F, with respect to the financial statements and certain financial information contained in the Preliminary Prospectus dated November 22, 2010, the Registration Statement, the Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (il) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there The Deposit Agreement shall not have been any decrease be in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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 changefull force and effect.
(l) The Depositary shall have furnished or caused to be furnished to the Underwriter certificates satisfactory to the Underwriter evidencing the deposit with the Custodian of the Underlying Shares in respect of which ADSs to be purchased by the Underwriter on such Closing Date are to be issued, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Underwriter may reasonably request.
(m) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mn) The Securities ADSs shall have been listed and admitted and authorized approved for trading listing on the New York Stock ExchangeNYSE, and satisfactory evidence subject only to official notice of such actions issuance.
(o) The FINRA shall have been provided confirmed that it has not raised any objection with respect to the Underwriterfairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby.
(p) There shall not be any adverse legislative or regulatory developments related to the M&A Rules and Related Clarifications which in the reasonable judgment of the Underwriter would make it inadvisable to proceed with the public offering or the delivery of the Shares and the ADSs on the terms and in the manner contemplated in this Agreement.
(q) The Lock-up Agreements shall be in full force and effect on the Closing Date. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder under this Agreement may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 offices of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat Bank of China Tower, Xxx Xxxx39/F, Xxx Xxxx 00000One Garden Road, Central, Hong Kong, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (VanceInfo Technologies Inc.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase borrow the Underwritten Securities and pay the Loan Fee as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(ai) The If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(ii) If, at or subsequent to the Execution time it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective, the registration statement or such post-effective amendment shall have become effective no later than such date and time as consented to in writing by you, and all filings, if any, required by Rules 424 and 430A Under the Act shall have been timely made.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Irell & XxxxMxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially covering such matters as are typically provided in the opinions delivered in connection with underwritten equity offerings, in form attached hereto as Exhibit D.and substance reasonably satisfactory to you.
(ec) The Selling Stockholder Cxxx, Raywid & Bxxxxxxxx L.L.P., special regulatory counsel to the Company, shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion you their written opinion, dated the Closing Date, addressed in form and substance reasonably satisfactory to you, to the Underwriter effect that:
(i) The issue and substantially sale of the Underwritten Securities and the compliance by the Company with the Share Lending Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Company or any of its subsidiaries or any of their property is subject; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of this Agreement and the Share Lending Agreement and the consummation of the transactions herein and therein contemplated; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in the Prospectus under the caption “Regulation and Legislation” and under the caption “Risk Factors” under the subheading “Risks relating to regulatory and legislative matters,” insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(iv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Company’s and the Company’s subsidiaries’ management, the Company and its subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television, industry, to such counsel’s knowledge, based solely upon its review of the publicly available records of the FCC and upon inquiry of the Company’s and its subsidiaries’ management, during the time the cable systems of the Company and its subsidiaries have been owned by the Company and its subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the FCC relating to the ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its subsidiaries or any cable system of the Company or any of its subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
(d) The General Counsel or Acting General Counsel of the Company, shall have furnished to you his written opinion, dated as of the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) Each subsidiary of the Company listed on a schedule attached hereto to such counsel’s opinion (the “Charter Subsidiaries”) has been duly incorporated or formed, as Exhibit E.the case may be, and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation; and all the issued shares of capital stock, limited liability company interests or partnership interests, as the case may be, of each Charter Subsidiary are set forth on the books and records of the Company and, except for those Charter Subsidiaries that are general partners, assuming receipt of requisite consideration therefor, are fully paid and nonassessable (in the case of corporate entities) and not subject to additional capital contributions (in the case of limited liability company entities and limited partnerships); and, except as otherwise set forth in the Prospectus, and except for liens not prohibited under the credit agreements listed on such schedule, all outstanding shares of capital stock of each of the Charter Subsidiaries are owned by the Company, either directly or indirectly or through wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(ii) Each of the Company and the Charter Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company, or any of the Company’s subsidiaries is party or of which any property of the Company or any of the Company’s subsidiaries is the subject, of a character required to be disclosed in the Registration Statement, which is not so disclosed, except for such proceedings which are not likely to have, individually or in the aggregate, a Material Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Prospectus, no such proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of the Share Lending Agreement and the consummation of the transactions therein contemplated will not result in a violation of the provisions of the certificate of incorporation or by-laws, or certificate of formation or limited liability company agreement or partnership agreement, as the case may be, of any of the Charter Subsidiaries.
(e) On each Effective Date and also on the Closing Date, KPMG LLP shall have furnished to you a “comfort” letter or letters of the type customarily provided in connection with underwritten equity offerings, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(f) The Underwriter shall have received from Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Mxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinions as are customarily provided by underwriters’ counsel in connection with the registration of equity securities in underwritten offerings on Form S-1, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Underwritten Securities, the Registration Statement, the Disclosure Package, Statement and the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Underwritten Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package thereto) and the Prospectus (exclusive of any amendment or supplement thereto).
(ki) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined used for purposes of Rule 3(a)(62436(g) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Underwritten Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation cancelation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Mxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000at [ ], on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder (including providing all required certificates and opinions described below in forms reasonably satisfactory to the Underwriter and counsel for the Underwriter) and to the following additional conditions:
(a) The Prospectus, Prospectus and any supplement thereto, have thereto has been filed in the manner and within the time period required by Rule 424(b); , and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellXxxx Xxxxxxx, Lipton, Xxxxx & XxxxP.C., counsel for the Company, and Xxxx Xxxxx, Esq., general counsel to the Company, to have furnished to the Underwriter its opinion and negative assurance letterstheir respective opinions, dated the Closing Date Date, and addressed to the Underwriter, in substantially in the form forms attached hereto as Exhibit B.B-1 and Exhibit B-2.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinions and letter, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since they have carefully examined the date Registration Statement, the Prospectus and the Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the most recent financial statements included in Effective Date, (2) the Disclosure Package Prospectus, as of its date and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated on the Closing Date, to or (3) the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and Disclosure Package, as of the Closing Date Execution Time, 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 required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the same effect as if made on Registration Statement, the Closing DateProspectus or any Issuer Free Writing Prospectus that has not been so set forth.
(ie) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to (i) have furnished to the Underwriter Underwriter, at the Execution Time andTime, a letter dated as of the Execution Time, in form and substance satisfactory to the case Underwriter, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the PCAOB and stating as of Ernst & Young LLPthe Execution Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Disclosure Package, as of a date not more than five days prior to the Execution Time), the conclusions and findings of such firm with respect to the financial information set forth or incorporated by reference in the Disclosure Package and other matters customarily covered by accountants’ “comfort letters” to the Underwriter; and (ii) at the Closing Date, letter(s)furnish to the Underwriter a letter, dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter., confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the PCAOB and stating as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the Closing Date), the conclusions and findings of such firm with respect to the financial information set forth in the Prospectus and other matters customarily covered by accountants’ “comfort letters” to the Underwriter;
(jf) The Company shall have requested and caused Pricewaterhouse Coopers LLP to (i) have furnished to the Underwriter, at the Execution Time, a letter dated as of the Execution Time, in form and substance satisfactory to the Underwriter, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the PCAOB and stating as of the Execution Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Disclosure Package, as of a date not more than five days prior to the Execution Time), the conclusions and findings of such firm with respect to the financial information set forth or incorporated by reference in the Disclosure Package and other matters customarily covered by accountants’ “comfort letters” to the Underwriter; and (ii) at the Closing Date, furnish to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the PCAOB and stating as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the Closing Date), the conclusions and findings of such firm with respect to the financial information set forth or incorporated by reference (including in the Quarterly Report on Form 10-Q for the quarter ended March 31, 2009) in the Prospectus and other matters customarily covered by accountants’ “comfort letters” to the Underwriter;
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph paragraphs (ie) and (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise)condition, earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Securities.
(kh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under the Exchange Act) or subsequent to the Execution Time, 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.
(li) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mj) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, subject to notice of issuance, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 .
(k) The Company shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each of the officers and counsel for directors of the Company set forth on Annex B hereto addressed to the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Jarden Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bi) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxxxxxx Xxxxxxxx & XxxxXxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
C hereto and (eii) The the Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx Xxxx & Xxxxxxxx Xxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion their opinion, dated the Closing Date, Date and addressed to the Underwriter and Underwriter, substantially in the form attached hereto as Exhibit E.D hereto.
(fc) The Underwriter shall have received from O’Melveny & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and use, and, to their knowledge, no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative person of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, dated the Closing Date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date and the Selling Stockholder has complied with all the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(if) The Company shall have requested and caused each of BDO USA, LLP and Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, “comfort” letter(s), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the UnderwriterUnderwriter and covering the financial statements of the Company that were audited by BDO USA, LLP and Xxxxx & Young LLP, respectively, and certain other financial information included in the Preliminary Prospectus and the Prospectus and other customary matters.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(j) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Underwriter.
(k) At the Execution Time and at the Closing Date, the Company shall have furnished to the Underwriter a certificate of the Chief Financial Officer of the Company in form and substance and reasonably satisfactory to the Underwriter. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of O’Melveny & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx at Xxx Xxxxxxxxxxx Xxxxxx, Xxx Xxxx00xx Xxxxx, Xxx Xxxx Xxxxxxxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, PNMAC and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company Company, PNMAC and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, PNMAC and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxXxxxxxx XxXxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.and substance reasonably satisfactory to you.
(ec) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP and Xxxxxx, XxXxxxxxx & Fish LLP, counsel counsels for the Selling Stockholder, to have furnished to the Underwriter its opinion their opinions, dated the Closing Date, Date and addressed to the Underwriter Underwriter, in form and substantially in the form attached hereto as Exhibit E.substance reasonably satisfactory to you.
(fd) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter you may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company and PNMAC shall have furnished to the Underwriter you a certificate on behalf of the CompanyCompany and PNMAC, signed by each of the respective Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of each of the CompanyCompany and PNMAC, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and PNMAC in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and each of the Company has and PNMAC have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s or PNMAC’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, Effect except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hf) The Selling Stockholder shall have furnished or caused to be furnished to you at the Underwriter a certificate, signed by an authorized representative Closing Date certificates of officers of the Selling Stockholder Stockholder, reasonably acceptable satisfactory to counsel you as to the Underwriter dated the Closing Date, to the effect that accuracy of the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on herein at and as of the such Closing Date Date, as of to the same effect as if made on performance by the Selling Stockholder of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as you may reasonably request.
(ig) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter you, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to you, confirming that they are independent accountants within the Underwriter.meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(jiv) Subsequent to in their opinion the Execution Time or, if earlier, the dates as of which information is given audited financial statements and financial statement schedules and pro forma financial statements included in the Registration Statement (exclusive of any amendment thereof) Statement, the Preliminary Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in and reported on by them comply as to form with the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties applicable accounting requirements of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Act and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material related rules and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated regulations adopted by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.Commission;
Appears in 1 contract
Samples: Underwriting Agreement (Pennymac Financial Services, Inc.)
Conditions to the Obligations of the Underwriter. The obligations of the Selling Stockholder to sell the Shares to the Underwriter and the several obligations of the Underwriter to purchase and pay for the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as that are not qualified by materiality and to the accuracy of the Execution Time representations and warranties of the Company and the Selling Stockholder contained herein that are qualified by materiality at the date hereof or the Closing Date pursuant to Section 3 hereofDate, as the case may be, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx (i) Sxxxxxx Xxxxxxx & XxxxBxxxxxxx LLP, counsel for the Company, to have furnished furnish to the Underwriter its their opinion and negative assurance lettersstatement, each dated the Closing Date and addressed to the Underwriter, Underwriter and substantially in the form attached hereto as Exhibit B.
of Exhibits A and B hereto; (cii) The Rxxxx X. Xxxxxxxxx, General Counsel of the Company, shall have furnished to furnish to the Underwriter her his opinion dated the Closing Date and addressed to the Underwriter, Underwriter and substantially in the form attached hereto as of Exhibit C.
C hereto; and (diii) The Company shall have requested and caused XxxxxxSkadden, Halter Arps, Slate, Mxxxxxx & Xxxxxxxx Fxxx LLP, Ohio special environmental counsel for the Company, to have furnished furnish to the Underwriter its opinion, their negative assurance letter as to certain specified environmental disclosure dated the Closing Date and addressed to the Underwriter, Underwriter and substantially in the form attached hereto as of Exhibit D.D hereto.
(eb) The Selling Stockholder shall have requested and caused Xxxxxxx Sxxxxxx Xxxxxxx & Xxxxxxxx Bxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished furnish to the Underwriter its their opinion dated the Closing Date, Date and addressed to the Underwriter and substantially in the form attached hereto as of Exhibit E.A hereto.
(fc) The Underwriter shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the offer and sale of the SecuritiesShares, the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Prospectus (together with any supplement thereto) and Registration Statement and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by (x) the Chairman of the Board or the Chief Executive Officer or President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Time of Sale Prospectus, the Prospectus and Registration Statement, any amendment or supplement to the Time of Sale Prospectus, the Prospectus and Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement that are not qualified by materiality are true and correct in all material respects, and the representations and warranties of the Company in this agreement that are qualified by materiality are true and correct, in each case, on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included in the Prospectus and the Registration Statement (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement).
(e) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an executive officer of the Selling Stockholder, dated the Closing Date, to the effect that the representations and warranties of such Selling Stockholder in this Agreement that are not qualified by materiality are true and correct in all material respects and the representations and warranties of the Selling Stockholder that are qualified by materiality are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hf) The Selling Stockholder shall have furnished Prior to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated Closing Date and at the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG PricewaterhouseCoopers LLP to have furnished furnish to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s)a “comfort” letter, dated respectively as of the Execution Time anddate thereof, if applicable, and a bring-down “comfort” letter on and dated as of the Closing Date, each in form and substance reasonably satisfactory to the Underwriter, confirming that it is an independent registered public accounting firm within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Time of Sale Prospectus, the Prospectus and Registration Statement; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three days prior to the date of such letter. All references in this Section 9(f) to the Time of Sale Prospectus, the Prospectus and Registration Statement include any amendment or supplement thereto at the date of the applicable letter.
(jg) Subsequent to the Execution Time or, if earlier, execution and delivery of this Agreement and prior to the dates as of which information is given in the Registration Statement Closing Date:
(exclusive of any amendment thereofi) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have occurred any downgrading, nor shall any notice have been (i) given of any intended or potential downgrading or of any review for a possible change or decrease specified that does not indicate the direction of the possible change, in the letter or letters referred to in paragraph (irating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) of this Section 6 or under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the managementcondition, condition (financial or otherwise), or in the earnings, business business, properties or properties results of operations of the Company or and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as that set forth in or contemplated in the Disclosure Package and the Time of Sale Prospectus (exclusive of any amendment amendments or supplement theretosupplements thereto subsequent to the date of this Agreement) the effect of whichthat, in any case referred to in clause (i) or (ii) aboveyour judgment, is, in the sole judgment of the Underwriter, so is material and adverse as and that makes it, in your judgment, impracticable to make it impractical or inadvisable to proceed with market the offering or delivery Shares on the terms and in the manner contemplated in the Time of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Sale Prospectus.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing Date, Date the Company and and/or the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) The Securities Shares shall have been listed and admitted and authorized for trading on the New York Stock Exchange.
(j) On the Closing Date, the Registration Statement shall be effective; no stop order suspending the effectiveness of the Registration Statement shall be in effect, and satisfactory evidence of no proceedings for such actions purpose shall be pending before or threatened by the Commission.
(k) No Underwriter shall have been provided to notice of an adverse claim on the UnderwriterShares within the meaning of Section 8-102 of the UCC. If any of the conditions specified in this Section 6 9 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement Section 9 shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled cancelled at, or at any time prior to, the Closing Date Date, by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall 9 will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 at 500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter hereunder, as to purchase the Securities Notes to be delivered at the Delivery Date, shall be subject subject, in its discretion, to the accuracy of the condition that all representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the other statements of the Company herein are, at and as of the date hereof and the Selling Stockholder made in any certificates pursuant to Delivery Date, true and correct and the provisions hereof, to the performance by condition that the Company and the Selling Stockholder shall have performed all of their respective its obligations hereunder theretofore to be performed, and to the following additional conditions, unless any such condition is waived in writing by the Underwriter:
(a) The Prospectus, and any supplement thereto, Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act each Issuer Free Writing Prospectus shall have been filed with the Commission if, in the manner and within the applicable time periods prescribed for such filings period required by Rule 433; and no stop order suspending the effectiveness use of the Registration Statement Prospectus or any notice objecting to its use Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatenedinitiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) The Company shall have requested and caused Wachtell, LiptonOn the Delivery Date, Xxxxx & XxxxXxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such an opinion or opinions, dated the Closing Date and addressed to the Underwritersuch dates, with respect to the issuance and sale of the SecuritiesNotes on each the Delivery Date, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) Prospectus, and other related matters as the Underwriter may reasonably requirerequest, and the Company and the Selling Stockholder such counsel shall have furnished to received such counsel such documents papers and information as they may reasonably request for the purpose of enabling to enable them to pass upon such matters.
(gc) The On the Delivery Date, Xxxxxxxx & Xxxxxxxxx LLP ("Xxxxxxxx & Xxxxxxxxx"), counsel for the Company, and Xxxxxxxxxxx X. Xxxxxx, General Counsel to the Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Companywritten opinions, dated such dates, in form and substance satisfactory to the Closing DateUnderwriter, to the effect that:of the matters set forth on Exhibits A and B hereto, respectively. In rendering such opinions, Xxxxxxxx & Xxxxxxxxx may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries, and public officials.
(d) On the date of this Agreement and also at the Delivery Date, Xxxxx Xxxxxxx LLP and Xxxxxxx Advisors, LLP, shall have furnished to the Underwriter a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information of the Company or Lone Star, as the case may be, contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus.
(i) the representations The Company and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose subsidiaries shall not have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of Prospectus, any supplement thereto)loss or interference with their respective businesses from fire, there has been no Material Adverse Effectexplosion, except flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or expressly contemplated in the Disclosure Package and the Prospectus Prospectus, and (exclusive of any supplement thereto).
(hii) The Selling Stockholder shall have furnished to since the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter capital stock or letters referred long-term debt of the Company or its subsidiaries (except for newly-issued shares issued pursuant to the Company's employee benefit plans, stock-based incentive plans, incentive compensation plans, or other similar plans in paragraph (ithe ordinary course of business and borrowings and repayments under the Company's revolving credit facility in the ordinary course of business) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the general affairs, management, condition (financial position, stockholders' equity or otherwise), earnings, business or properties results of operations of the Company or its subsidiaries taken as a wholesubsidiaries, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) Prospectus, the effect of which, in any such case referred to described in clause (i) or (ii) above), is, is in the sole reasonable judgment of the Underwriter, Underwriter so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as Notes being delivered at such Delivery Date on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(kf) The Company shall have furnished or caused to be furnished to the Underwriter on such Delivery Date certificates of officers of the Company satisfactory to the Underwriter as to the accuracy of the representations and warranties of the Company herein at and as of the date hereof and the Delivery Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Delivery Date, as to the matters set forth in subsections (a) and (e) of this Section 8 and as to such other matters as the Underwriter may reasonably and timely request in writing.
(g) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions contemplated hereby.
(h) Subsequent to the Execution Timeearlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, there (i) no downgrading shall not have been any decrease occurred in the rating accorded the Notes or any other debt securities or preferred stock of or guaranteed by the Company or any of the Company’s or its subsidiaries’ debt securities subsidiaries by any “"nationally recognized statistical rating organization” (", as such term is defined for purposes of Rule Section 3(a)(62) under of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Notes or of any other debt securities or preferred stock of or guaranteed by the Company or any notice given of any intended or potential decrease in any such rating or its subsidiaries (other than an announcement with positive implications of a possible change in any such rating that does not indicate the direction of the possible changeupgrading).
(li) Prior to the Closing On or before such Delivery Date, the Company Underwriter and counsel for the Selling Stockholder Underwriter shall have furnished to the Underwriter received such further information, certificates documents and documents opinions as the Underwriter they may reasonably request.
(m) The Securities shall have been listed require for the purposes of enabling them to pass upon the issuance and admitted sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and authorized for trading on warranties, or the New York Stock Exchangesatisfaction of any of the conditions or agreements, and satisfactory evidence of such actions shall have been provided to the Underwriterherein contained. If any of the conditions specified in this Section 6 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriterits counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Delivery Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing 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 (with written confirmation of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Datereceipt).
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Company, PNMAC and the Selling Stockholder Stockholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Company, PNMAC and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, PNMAC and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxXxxxxxx XxXxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.and substance reasonably satisfactory to you.
(ec) The Selling Stockholder Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP[ ], counsel for the Selling StockholderStockholders, to have furnished to the Underwriter its opinion their opinions, dated the Closing Date, Date and addressed to the Underwriter Underwriter, in form and substantially in the form attached hereto as Exhibit E.substance reasonably satisfactory to you.
(fd) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP[ ], counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter you may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company and PNMAC shall have furnished to the Underwriter you a certificate on behalf of the CompanyCompany and PNMAC, signed by each of the respective Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of each of the CompanyCompany and PNMAC, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and PNMAC in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and each of the Company has and PNMAC have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s or PNMAC’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, Effect except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hf) The Each Selling Stockholder shall have furnished or caused to be furnished to you at the Underwriter a certificate, signed by an authorized representative Closing Date certificates of (i) officers of the Selling Stockholder, if the Selling Stockholder is an entity, or (ii) the Selling Stockholder, if the Selling Stockholder is a natural person, reasonably acceptable satisfactory to counsel you as to the Underwriter dated the Closing Date, to the effect that accuracy of the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on herein at and as of the such Closing Date Date, as of to the same effect as if made on performance by the Selling Stockholder of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as you may reasonably request.
(ig) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter you, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to you, confirming that they are independent accountants within the Underwritermeaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company, PNMAC and their subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the Audit Committee, the Compensation Committee, the Risk Management Committee and Governance and Nominating Committee of the Company, PNMAC and their subsidiaries; and inquiries of certain officials of the Company, PNMAC and their subsidiaries who have responsibility for financial and accounting matters of the Company, PNMAC and their subsidiaries as to transactions and events subsequent to [ ], nothing came to their attention which caused them to believe that: with respect to the period subsequent to [ ], there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company, PNMAC and their subsidiaries or the capital stock of the Company, PNMAC and their subsidiaries or decreases in the stockholders’ equity of the Company, PNMAC and their subsidiaries as compared with the amounts shown on the [ ] consolidated balance sheet included in the Registration Statement, the Preliminary Prospectus and the Prospectus, or for the period from [ ] to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net revenues or income before income taxes or in total or per share amounts of net income of the Company, PNMAC and their subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by you;
(iii) they have performed certain other specified procedures as a result of which they determined that certain 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 Company, PNMAC and their subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Company, PNMAC and their subsidiaries, excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus (the “pro forma financial statements”); carrying out certain specified procedures; inquiries of certain officials of the Company, PNMAC and their subsidiaries who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(jh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ig) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its Company, PNMAC and their subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the your sole judgment of the Underwriterjudgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(li) Prior to the Closing Date, the Company and the Selling Stockholder PNMAC shall have furnished to the Underwriter you such further customary information, certificates and documents as the Underwriter you may reasonably request.
(mj) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to you.
(k) At the UnderwriterExecution Time, the Company shall have furnished to you a letter substantially in the form of Exhibit A-1 hereto from each officer and director of the Company and each of the parties listed on Exhibit A-2 addressed to you. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter you and counsel for the Underwriteryour counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriteryou. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP[ ], counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000at [ ], on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Pennymac Financial Services, Inc.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date pursuant to Section 3 hereofand any Option Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Lipton, Xxxxx & XxxxProfessional Corporation, counsel for the Company, to have furnished to the Underwriter its opinion opinions and negative assurance lettersletter, each dated the Closing Date and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ie) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Xxxxxx to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from December 8, 2020 (date of inception) through December 31, 2020, provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain 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 Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lg) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mh) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock Exchange, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Founder’s Purchase Agreement. On or prior to the Closing Date, the Company will deliver to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letter and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $6,000,000 of the purchase price for the Private Placement Units to be deposited into the Trust Account, with the remainder being deposited into the Company’s operating accounts at a financial institution to be chosen by the Company.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or shall have been threatened.
(m) The several obligations of the Underwriter to purchase Option Securities hereunder are subject to the delivery to the Underwriter on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriter, from Xxxxxx substantially in the same form and substance as the letter furnished to the Underwriter pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date;
(v) on each Option Closing Date, the Sponsor shall have caused to be deposited into the Trust Account a portion of the purchase price for the additional Private Placement Units equal to 2.0% of the aggregate purchase price for any Option Securities to be issued and sold on such Option Closing Date, up to a maximum of $900,000.00 in the aggregate for all Option Closing Dates taken together; and
(vi) such further information, certificates and documents as Underwriter may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx at 0000 Xx Xxxxxx Xxxx, Xxx Xxxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxx 00000X. Xxxxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (NightDragon Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Shareholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Shareholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement has been issued, no order or any notice objecting to its preventing or suspending the use shall have of the Base Prospectus or the Final Prospectus has been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, LiptonXxxxxx, Xxxxx & XxxxXxxxxxx LLP, counsel for the Company, to have furnished furnish to the Underwriter its opinion and negative assurance letters10b-5 statement, dated the Closing Date and addressed to the Underwriter, in substantially in the form attached hereto as Exhibit B.of Annex A-1 and Annex A-2 hereto.
(c) The General Counsel Each of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company Selling Shareholders shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio its counsel for the Company, to have furnished furnish to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, in substantially the form of Annex B-1 and B-2 (in the form attached hereto as Exhibit D.case of TPG) and B-3 (in the case of the Trust) hereto.
(ed) The Selling Stockholder Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxx X. Xxxxxxx, counsel for General Counsel of the Selling StockholderCompany, to have furnished furnish to the Underwriter its opinion his opinion, dated the Closing Date, Date and addressed to the Underwriter and Underwriter, in substantially in the form attached hereto as Exhibit E.of Annex C hereto.
(fe) The Underwriter shall have received from Xxxxx Xxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, as counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or (x) the Chief Executive Officer or and (y) the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect thatthat the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no order or any notice objecting to its preventing or suspending the use of the Base Prospectus or the Final Prospectus has been issued and no proceedings for that purpose any of those purposes have been instituted or, to the Company’s knowledge, are threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) At the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG LLP to furnish to the Underwriter letters, dated respectively as of the Execution Time and as of the Closing Date with respect to the Company and the Worthington Armstrong Venture in form and substance satisfactory to the Underwriter.
(h) The Each Selling Stockholder Shareholder shall have furnished to the Underwriter a certificatecertificate of such Selling Shareholder, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the such Selling Stockholder Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date to with the same effect as if made on the Closing Date and such Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed are satisfied hereunder prior to the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule in Section 3(a)(62) under 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.
(j) At the Closing Date, the Securities shall continue to be listed on the New York Stock Exchange.
(k) As of the date hereof and the Closing Date, the Share Repurchase Agreement shall have been executed and delivered by the Company, and contemporaneously with the consummation of the offering of the Securities, the Concurrent Share Repurchase will have been consummated.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000’s counsel set forth in this Agreement, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Armstrong World Industries Inc)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Securities Initial Series 2005A Bonds on the Date of Issuance shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the Company and the Selling Stockholder Issuer contained herein as of the Execution Time date hereof and as of the Closing Date pursuant to Section 3 hereofof Issuance, to the accuracy in all material respects of the statements of the officers and other officials of the Trustee, the Bank, the Company and the Selling Stockholder Issuer made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the Company and the Selling Stockholder Issuer of their respective obligations obligations, as applicable, to be performed hereunder at or prior to the Date of Issuance and to the following additional conditions:
(a) The ProspectusOn the Date of Issuance, the Initial Series 2005A Bonds, the Initial Series 2005B Bonds, the Indenture, the Lease Agreement, the Series 2005B Purchase Agreement, the Remarketing Agreement, the Credit Agreement and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Letter of Credit shall have been filed duly authorized, executed and delivered by the respective parties thereto, in substantially the forms heretofore submitted to the Underwriter with the Commission within the applicable time periods prescribed for any such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use changes as shall have been issued agreed to in writing by the Underwriter, and no proceedings for that purpose said agreements shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been instituted taken in connection therewith, with the issuance of the Initial Series 2005A Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as Bond Counsel or threatenedUnderwriter’s Counsel shall deem to be necessary and appropriate.
(b) The representations and warranties of each of the Company and the Issuer contained in this Bond Purchase Agreement shall be true, correct and complete in all material respects on the date hereof and on the Date of Issuance, as if made again on the Date of Issuance, and the Official Statement (as the same may be supplemented or amended with the written approval of the Underwriter) shall be true, correct and complete in all material respects and shall not contain any untrue statement of fact or omit to state any fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which such statements were made, not misleading.
(c) There shall have requested occurred no material adverse change in the condition (financial or otherwise) of the Company between the date hereof and caused Wachtellthe Date of Issuance.
(d) The Underwriter shall be paid the amount set forth in Section 4(a) on the Date of Issuance.
(e) At or prior to the Date of Issuance, Liptonthe Underwriter shall have received the following documents, Xxxxx & Xxxxin each case satisfactory in form, counsel for scope and substance to the Underwriter:
(i) copies of the Indenture, the Lease Agreement, the Series 2005B Purchase Agreement, the Remarketing Agreement, and the Credit Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter, the Official Statement duly approved by the Issuer and the Company, to have furnished to and a copy of the Underwriter its Letter of Credit as executed by the Bank;
(ii) a final opinion and negative assurance lettersof Bond Counsel, dated the Closing Date of Issuance, in the form attached to the Official Statement, and a letter of Bond Counsel, dated the Date of Issuance and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of Trustee, the Bank and the Company, shall have furnished to the Underwriter her effect that its opinion addressed to the Issuer may be relied upon by such parties to the same extent as if such opinion were addressed to each of them;
(iii) an opinion of counsel to the Bank dated the Closing Date of Issuance and addressed to the UnderwriterIssuer, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished the Rating Agency rating the Initial Series 2005A Bonds, the Trustee and the Underwriter to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.effect that:
(e1) The Selling Stockholder shall have requested the Bank is a national banking association, validly existing under the laws of the United States of America, and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPis empowered under such laws to issue the Letter of Credit and to take all actions required or permitted on its part to be taken, counsel for under the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.Letter of Credit;
(f2) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLPthe Letter of Credit constitutes the legal, counsel for the Underwriter, such opinion or opinions, dated the Closing Date valid and addressed to the Underwriter, with respect to the sale binding obligation of the SecuritiesBank, enforceable against the Registration StatementBank in accordance with its terms, the Disclosure Packageexcept (A) as limited by bankruptcy, the Prospectus (together with any supplement thereto) insolvency, reorganization, moratorium and other related matters as laws relating to or affecting generally the Underwriter may reasonably require, enforcement of creditors’ rights and the Company remedies generally; and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose (B) general principles of enabling them to pass upon such matters.equity; and
(g3) The Company shall have furnished to the Underwriter a certificate Letter of Credit is exempt from the registration requirements of the Company, signed by the Chairman 1933 Act;
(iv) one or more opinions of the Board or the Chief Executive Officer or the principal financial or accounting officer of counsel to the Company, dated the Closing DateDate of Issuance and addressed to the Issuer, the Bank, the Trustee and the Underwriter, to the effect, among other things, that:
(1) the Company is possessed of full power and authority to conduct its business as presently conducted and as contemplated to be conducted by the Company Documents;
(2) the Company is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Virginia and is duly qualified to do business in the State of New Mexico;
(3) the Company has full power and authority to execute and deliver the Company Documents; the Company Documents have been duly authorized, executed and delivered on its behalf and when executed by the other parties thereto will be the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium or similar laws or by legal or equitable principles relating to or limiting creditors’ rights generally or public policy as to the enforcement of certain provisions, such as indemnification provisions;
(4) the execution and delivery of the Company Documents and compliance by the Company with the provisions thereof will not result in a violation of, a breach of, or a default under the articles of incorporation or bylaws of the Company or any statute, indenture, mortgage, deed of trust, note agreement, other agreement or instrument to which the Company is a party or by which the Company or any of its property is bound, or any order, rule or regulation of any court or other governmental body having jurisdiction over the Company which breach might have a materially adverse effect on the ability of the Company to perform under the Company Documents;
(5) no authorization, approval, consent or order of any governmental agency or any other person or entity is required for the valid authorization, execution and delivery of the Company Documents on behalf of the Company that has not been obtained except that no opinion will be rendered by it concerning Blue Sky compliance or federal securities law registration exemption;
(6) to the best of counsel to the Company’s knowledge, there is no action, suit, proceeding, inquiry or investigation by or before any court, governmental agency, public board or body pending or threatened against or affecting the Company which, if determined adversely to it, would have a material adverse effect upon the consummation of the transactions contemplated by the Company Documents or the financial condition or assets of the Company; and
(7) to the best of counsel to the Company’s knowledge, the information contained in the Official Statement describing the Company, the use of the proceeds of the Bonds and the Project is true and correct in all material respects, and such information does not contain any untrue or misleading statement of material fact or omit to state a material fact necessary to make statements therein, in light of the circumstances under which they were made, not misleading;
(v) a certificate of the Company dated the Date of Issuance, signed by the Company, confirming the representations set forth in Section 6 hereof as if given on the Date of Issuance;
(vi) a certificate of the Trustee dated the Date of Issuance, signed by a duly authorized officer of the Trustee, to the effect that:
(i1) such officer is a duly authorized officer of the Trustee;
(2) the Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America, is authorized to carry out corporate trust powers in the State of New Mexico and has all necessary power and authority to enter into and perform its duties under the Indenture and upon the execution and delivery thereof by the Trustee, the Indenture shall constitute a legally valid and binding obligation of the Trustee, enforceable in accordance with its terms;
(3) the duties and obligations of the Trustee under the Indenture have been duly accepted by the Trustee;
(4) the Trustee is duly authorized to authenticate and deliver the Series 2005A Bonds to the Underwriter under instruction by the Issuer pursuant to the terms of the Indenture;
(5) to the best knowledge of such officer, the acceptance by the Trustee of the duties and obligations under the Indenture and the execution and delivery of the Indenture and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, any law, administrative regulation, court decree, resolution, charter, bylaw or other agreement to which the Trustee is subject or by which it is bound;
(6) the representations and warranties of the Company Trustee in this Agreement the Indenture are true true, complete and correct on and in all material respects as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedIssuance; and
(iii7) since the date Initial Bonds have been validly authenticated, registered and delivered by the Trustee;
(vii) a certificate of the most recent financial statements included in Issuer, dated the Disclosure Package and the Prospectus (exclusive Date of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificateIssuance, signed by an authorized representative of the Selling Stockholder reasonably such officer as is acceptable to counsel to the Underwriter dated the Closing DateUnderwriter, to the effect that the representations and warranties of the Selling Stockholder Issuer contained in this Bond Purchase Agreement are true and correct in all material respects on and as of the Closing Date of Issuance;
(viii) a certificate of the Bank, dated the Date of Issuance, signed by an authorized representative of the Bank to the same effect as if made on that:
(1) all conditions precedent to the Closing Date.issuance of the Letter of Credit, including those specified in the Credit Agreement, have been satisfied or have been waived;
(2) to the actual knowledge of such authorized representative of the Bank, there is no action, suit, litigation, proceeding, inquiry or investigation at law or in equity or by or before any judicial or administrative court, agency, body or other entity, pending or threatened against the Bank or any of its properties, where an unfavorable decision, ruling or finding (i) The would adversely affect the validity or enforceability of the Letter of Credit or (ii) would otherwise adversely affect the legal ability of the Bank to comply with its obligations under the Letter of Credit; and
(3) the information contained in the Official Statement describing the Bank is true and correct in all material respects;
(ix) an opinion of Underwriter’s Counsel dated the Date of Issuance and addressed to the Issuer, the Trustee, the Bank, the Underwriter and the Company shall have requested substantially in the form of Exhibit B hereto;
(x) an opinion of Underwriter’s Counsel dated the Date of Issuance and caused each of Ernst & Young LLP and KPMG LLP to have furnished addressed to the Underwriter at the Execution Time and, substantially in the case form of Ernst Exhibit C hereto;
(xi) evidence satisfactory to the Underwriter to the effect that the Initial Series 2005A Bonds have received a rating of “AA/A-1+” or better from Standard & Young LLPPoor’s Ratings Services, at a division of The XxXxxx-Xxxx Companies, Inc., which rating remains in effect on the Date of Issuance;
(xii) evidence satisfactory to the Underwriter that the Series 2005B Bond Purchaser has purchased $17,975,000 aggregate principal amount of Initial Series 2005B Bonds for its own account on the Initial Closing Date; and
(xiii) such additional legal opinions, letter(s)certificates, dated respectively proceedings, instruments and other documents as of the Execution Time andUnderwriter, if applicableBond Counsel or Underwriter’s Counsel may reasonably request to evidence compliance by the Issuer, the Company, the Bank and the Trustee with legal requirements, the truth and accuracy, as of the Closing DateDate of Issuance, in form and substance reasonably satisfactory to of the Underwriter.
(j) Subsequent to representations of the Execution Time or, if earlierIssuer, the dates as of which information is given in Company, the Registration Statement (exclusive of any amendment thereof) Bank and the Prospectus (exclusive of any amendment or supplement thereto)Trustee, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment due performance or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated satisfaction by the Registration Statement (exclusive of any amendment thereof)Issuer, the Disclosure Package Company, the Bank and the Prospectus (exclusive Trustee at or prior to such time of any amendment or supplement thereto).
(k) Subsequent all agreements then to be performed and all conditions then to be satisfied by the Execution TimeIssuer, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company Bank and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably requestTrustee.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Bond Purchase Agreement (Tempur Pedic International Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Shareholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Shareholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Shareholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(di) The Company shall have requested and caused Xxxxxx, Halter Xxxxxxx Xxxx & Xxxxxxxx Xxxxx LLP, Ohio counsel for the CompanyCompany and Xxxxx LLC, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
A hereto, and (eii) The the Selling Stockholder Shareholder shall have requested and caused Xxxxxxx Xxxxxxx Xxxx & Xxxxxxxx Xxxxx LLP, counsel for the Selling StockholderShareholder, to have furnished to the Underwriter its opinion their opinion, dated the Closing Date, Date and addressed to the Underwriter and Underwriter, substantially in the form attached hereto as Exhibit E.B hereto.
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Shareholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder Shareholder shall have furnished to the Underwriter a certificate, signed by an authorized representative person of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Shareholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the Selling Stockholder Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date and the Selling Shareholder has complied with all the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, “comfort” letter(s), dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the UnderwriterUnderwriter and covering the financial statements of the Company, Xxxxx LLC and Trican and certain other financial information included in the Preliminary Prospectus and the Final Prospectus and other customary matters.
(jg) The Company shall have requested and caused Xxxxx Xxxxxxxx LLP to have furnished to the Underwriter, at the Execution Time and at the Closing Date, “comfort” letter(s), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter and covering the financial statements of RockPile and certain other financial information included in the Preliminary Prospectus and the Final Prospectus and other customary matters.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph paragraphs (if) and (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.this
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially as set forth in the form attached hereto as Exhibit D.B.
(ec) The Selling Stockholder Company shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLPYoung, PLLC, regulatory counsel for the Selling StockholderCompany, to have furnished to the Underwriter its opinion opinion, dated the Closing Date, Date and addressed to the Underwriter and substantially as set forth in the form attached hereto as Exhibit E.C.
(fd) Certain Selling Stockholders shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for Long Bar Miramar LLC and Xxxxxx and Calder, counsel for Indigo Florida L.P. to have furnished to the Underwriter their opinions, dated the Closing Date for the Securities and addressed to the Underwriter as set forth in Exhibit D.
(e) The Underwriter shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any amendment or supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed executed on its behalf by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hg) The Each Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, if applicable, or an attorney-in-fact on behalf of such Selling Stockholder, dated the Closing Date, to the effect that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to the same effect as if made on be performed or satisfied at or prior to the Closing Date.
(ih) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter., to the effect set forth in Exhibit E.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder Stockholders shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the each Selling Stockholder 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 Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 3, hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxx & XxxxXxxxxxxx London LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused XxxxxxXxxxxx and Calder, Halter & Xxxxxxxx LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinion, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit D.Underwriter.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fd) The Underwriter shall have received from Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx (UK) LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Xxxxxx to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing DateDate and any settlement date, as applicable, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock ExchangeNasdaq Global Market, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder's Subscription Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, if applicable, the last sentence of Section 3 shall be delivered at the office of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx (UK) LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 40 Xxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx 00000Xxxxxx Xxxxxxx, X00 0XX, Attention: Xxxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Mountain & Co. I Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, except to the extent such representation and warranty is specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton(i) Xxxxxx, Xxxxx & XxxxBockius LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially in the such form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, substance mutually agreed upon by counsel for the Selling StockholderUnderwriter and Xxxxxx, Xxxxx & Xxxxxxx LLP, and (ii) K&L Gates LLP, intellectual property counsel for the Company, to have furnished to the Underwriter its opinion their opinion, dated the Closing Date, Date and addressed to the Underwriter, in such form and substance mutually agreed upon by counsel for the Underwriter and substantially in the form attached hereto as Exhibit E.K&L Gates LLP.
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinion, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related such matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date except to the extent such representation and warranty is specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued, and no proceedings for that purpose have been instituted initiated or are pending or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ie) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate (except that the specified date referred to therein shall be the date as agreed upon by the Underwriter), in form and substance reasonably satisfactory to the Underwriter.
(jf) [Reserved.]
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kh) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mj) The Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNASDAQ, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(k) FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriter’s participation in same.
(l) Prior to the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each of the persons listed on Schedule III hereto addressed to the Underwriter. The Company will use its reasonable best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Securities Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder Authority contained herein herein, as of the Execution Time date hereof and as of the Closing Date pursuant to Section 3 hereofDate, to the accuracy in all material respects of the statements of the Company officers and other officials of the Selling Stockholder Authority made in any certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Company and Authority of its obligations to be performed hereunder at or prior to the Selling Stockholder of their respective obligations hereunder Closing Date and to the following additional conditions:
(a) The ProspectusAt the Closing Date, the Formation Documents and the District Documents shall be in full force and effect, and any supplement thereto, shall not have been filed amended, modified or supplemented, except as may have been agreed to in the manner and within the time period required by Rule 424(b); any other material required to be filed writing by the Company pursuant to Rule 433(d) under the Act Underwriter, and there shall have been filed taken in connection therewith, with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness issuance of the Registration Statement or any notice objecting Bonds and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as, in the opinion of Xxxxx Xxxx, A Professional Law Corporation, Bond Counsel and Disclosure Counsel for the Authority, and Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a Professional Corporation, counsel to its use the Underwriter, shall have been issued be necessary and no proceedings for that purpose shall have been instituted or threatened.appropriate;
(b) The Company information contained in the Official Statement will, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant to Section 2(m) hereof, be true, correct and complete in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto pursuant to Section 2(m) hereof, contain any 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, in the light of the circumstances under which they were made, not misleading;
(c) Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(2) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the status of the Authority or the District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Authority to construct or acquire the improvements as contemplated by the Formation Documents, the District Documents or the Official Statement;
(3) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or the Official Statement, or results in the Preliminary Official Statement or the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(4) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States which, in the judgment of the Underwriter, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Bonds on the terms and in the manner contemplated in the Preliminary Official Statement or the Official Statement;
(5) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have requested been fixed and caused Wachtellbe in force, Liptonor maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction that, in the Underwriter’s reasonable judgment, makes it impracticable for the Underwriter to market the Bonds or enforce contracts for the sale of the Bonds;
(6) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds 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, the Underwriter;
(7) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(8) there shall have been any material adverse change in the levy or collection of the Special Tax that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(9) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
(10) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended.
(d) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Formation Documents and the District Documents, together with a certificate dated as of the Closing Date of the Secretary of the Board to the effect that each Formation Document is a true, correct and complete copy of the one duly adopted by the Board;
(2) The Official Statement;
(3) An unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the Authority, of Xxxxx & Xxxx, counsel A Professional Law Corporation, Bond Counsel for the CompanyAuthority, to have furnished in the form attached to the Underwriter its opinion Preliminary Official Statement as Appendix E, and negative assurance lettersan unqualified letter of such counsel, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her effect that such approving opinion dated the Closing Date and addressed to the Underwriter, substantially in District may be relied upon by the form attached hereto Underwriter to the same extent as Exhibit C.if such opinion was addressed to it;
(d4) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such A supplemental opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the SecuritiesXxxxx Xxxx, the Registration StatementA Professional Law Corporation, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request Bond Counsel for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing DateAuthority, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall the District Documents have requested been duly authorized, executed and caused each of Ernst & Young LLP and KPMG LLP to have furnished to delivered by the Underwriter at the Execution Time Authority, and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as assuming such agreements constitute a valid and binding obligation of the Execution Time andother parties thereto, if applicable, as constitute the legally valid and binding agreements of the Closing DateAuthority enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and may be subject to general principles of equity (regardless of whether such enforceability is considered in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment equity or supplement theretoat law), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or ; (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; (iii) the information contained in the Official Statement on the cover and under the captions “INTRODUCTION,” “THE BONDS,” “SECURITY FOR THE BONDS,” “LEGAL MATTERS Tax Matters” and Appendices B and E thereof (except that no opinion or belief need be expressed as to any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwisestatistical data contained in the Official Statement), earnings, business insofar as it purports to summarize or properties replicate certain provisions of the Company or its subsidiaries taken as Law, the Bonds and the Indenture and the exemption from State of California personal income taxes of interest on the Bonds present a whole, whether or not arising from transactions fair and accurate summary of such provisions; (iv) the Special Tax has been duly and validly authorized in accordance with the ordinary course provisions of businessthe Law and, except as set forth the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights, by equitable principles and by the exercise of judicial discretion in or contemplated appropriate cases, a lien to secure payment of the Special Taxes has been imposed on all nonexempt property in the Disclosure Package and the Prospectus District, and
(exclusive of any amendment or supplement theretov) the effect of which, Prior Bonds have been defeased in any case referred to in clause (i) or (ii) above, is, in accordance with the sole judgment provisions of the Underwriter, so material and adverse as indenture pursuant to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.which they were issued;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell(i) Xxxx, LiptonWeiss, Xxxxx Rifkind, Xxxxxxx & XxxxXxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its their opinion and negative assurance lettersletter, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit B.
B-1, (cii) The Xxxxxxx X. Xxxxx, Senior Vice President, Deputy General Counsel and Corporate Secretary of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its his opinion, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-2, and (iii) gaming counsel to the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholderCompany in each jurisdiction listed on Schedule II hereto, to have furnished to the Underwriter its opinion opinions, dated the Closing Date, Date and addressed to the Underwriter and Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit E.B-3;
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and is outstanding and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial change or any development involving a prospective change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ie) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)a “comfort letter” and a bring-down “comfort letter”, dated respectively dated, respectively, as of the Execution Time and, if applicable, and as of the Closing Date, each addressed to the Underwriter and in form and substance reasonably satisfactory to the UnderwriterUnderwriter and confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Disclosure Package and the Prospectus, including any amendment or supplement thereto as of the date of the applicable letter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earningsbusiness, business results of operations or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kg) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) The Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq Global Select Market.
(j) At the Execution Time, and satisfactory evidence of such actions the Company shall have been provided furnished to the Underwriter a letter substantially in the form of Exhibit A-1 hereto from each of the entities listed on Schedule III hereto addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any settlement date pursuant to Section 3 hereof, by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (CAESARS ENTERTAINMENT Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Akin Gump Xxxxxxx Xxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as set forth on Exhibit D.B.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ie) The Company shall have requested and caused each of Ernst & Young KPMG LLP and KPMG LLP Netherland, Xxxxxx & Associates, Inc. to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)customary comfort letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, containing (i) in the case of the letter of KPMG LLP, statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus, and any amendments or supplements thereto, (ii) in the case of the letter of Netherland, Xxxxxx & Associates, Inc., statements and information of the type ordinarily included in reserve engineers’ “comfort letters” to underwriters with respect to the reserve reports described in Section 1(z) hereof and related reserve information contained in the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus, and any amendments or supplements thereto and (iii) with regards to such letters dated the Closing Date or any settlement date, to the effect that such firm reaffirms the statements made in the letters furnished on the date of this Agreement, except that the specified date referred to shall be a date not more than three Business Days prior to the Closing Date or such settlement date. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the respective letter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries MRD Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further customary information, certificates and documents as the Underwriter may reasonably request.
(mi) The Securities At the Execution Time, the other individuals or entities listed on Schedule III shall have been listed and admitted and authorized for trading on furnished to the New York Stock Exchange, and satisfactory evidence Underwriter a letter substantially in the form of such actions shall have been provided Exhibit A hereto addressed to the Underwriter.
(j) The Underwriter shall have received from the Company such additional documents and certificates as the Underwriter or counsel for the Underwriter may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat 0000 Xxxxxx Xx., Xxx XxxxSuite 2500, Xxx Xxxx 00000Houston, Texas 77002, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Memorial Resource Development Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WachtellSkadden, LiptonArps, Xxxxx Slate, Xxxxxxx & XxxxXxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion their opinions and negative assurance lettersletter, each dated the Closing Date and addressed to the Underwriter, substantially consistent with the forms set forth in the form attached hereto as Exhibit B.B-1, Exhibit B-2 and Exhibit B-3 hereto.
(c) The Underwriter shall have received on the Closing Date an opinion of Xxxxxx X. Xxxxx Xx., Vice President, General Counsel and Secretary of the Company, dated the Closing Date, substantially consistent with the form set forth set forth in Exhibit C. Such opinion shall have furnished be rendered to the Underwriter her opinion dated at the Closing Date request of the Company and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.shall so state therein.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxx, Xxxxxxxx LLPand Xxxxxx, P.A., counsel for the Selling Stockholder, to have furnished to the Underwriter its their opinion dated the Closing Date, Date and addressed to the Underwriter and Underwriter, substantially in consistent with the form attached hereto as set forth in Exhibit E.D.
(fe) The Underwriter shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the offer and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the a principal financial or accounting officer of the Company, on behalf of the Company and not in his or her individual capacity, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date (other than those representations and warranties which are made as of a specific date) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus, there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(hg) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an one or more authorized representative representatives of the Selling Stockholder reasonably acceptable to counsel to the Underwriter in such authorized representatives’ capacity as such and not in a personal capacity, dated the Closing Date, to the effect that the signer(s) of such certificate have reviewed (i) the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto with respect to the Selling Stockholder Information and (ii) this Agreement, and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ih) The Company Underwriter shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished received from KPMG, the independent registered public accounting firm for the Company, a “comfort letter” dated the date hereof addressed to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing DateUnderwriter, in form and substance reasonably satisfactory to the Underwriter, covering the relevant financial information in the Disclosure Package and other customary matters. In addition, on the Closing Date, the Underwriter shall have received from such accountant a “bring-down comfort letter” dated the Closing Date addressed to the Underwriter, in form and substance satisfactory to the Underwriter, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the relevant financial information in the Final Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(kj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule Section 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(l) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the Company’s stockholders listed in Schedule V hereto, addressed to the Underwriter.
(m) At the Execution Time and the Closing Date, the Company shall have furnished to the Underwriter a certificate of the Company, signed by a principal financial or accounting officer of the Company, on behalf of the Company and not in his or her individual capacity, dated the Execution Time or the Closing Date, as the case may be, with respect to the Proxy Statement of the Company filed with the Securities and Exchange Commission on Schedule 14A on April 11, 2014, in form and substance satisfactory to the counsel for the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, or at such other location as determined in accordance with Section 3 of this Agreement, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 3, hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Dxxxx Xxxx & XxxxWxxxxxxx London LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused XxxxxxMxxxxx and Calder, Halter & Xxxxxxxx LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinion, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit D.Underwriter.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fd) The Underwriter shall have received from Xxxxx Xxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxxxxx Fxxx (UK) LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Mxxxxx to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate and any settlement date, letter(s)as applicable, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate and any settlement date, as applicable, in form and substance reasonably satisfactory to the Underwriter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (if) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing DateDate and any settlement date, as applicable, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock ExchangeNasdaq Global Market, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder's Subscription Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, if applicable, the last sentence of Section 3 shall be delivered at the office of Xxxxx Xxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxxxxx Fxxx (UK) LLP, counsel for the Underwriter, 000 Xxxxxxxxx at 40 Xxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx 00000Xxxxxx Xxxxxxx, X00 0XX, Attention: Pxxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Mountain & Co. I Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time time of the execution of this Agreement and the Closing Date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, Registration Statement has become effective and any supplement thereto, have been filed in at the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and no proceedings any request on the part of the Commission for that purpose additional information from the Company shall have been instituted complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or threateneda post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B).
(b) The Company At the Closing Time, the Underwriter shall have requested and caused Wachtellreceived (i) the favorable opinion, Liptondated as of the Closing Time, Xxxxx of Xxxxxx & XxxxXxxxxx L.L.P., counsel for the Company, in form and substance satisfactory to have furnished counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter its opinion may reasonably request, and negative assurance letters(ii) the favorable opinion, dated as of the Closing Date and addressed to Time, of the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter her opinion dated may reasonably request.
(c) At the Closing Date and addressed to Time, the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from the favorable opinion, dated as of the Closing Time, of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date in form and addressed substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, with respect as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the sale Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and officers of the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose its subsidiaries and certificates of enabling them to pass upon such matterspublic officials.
(gd) The Company Underwriter shall have furnished to the Underwriter received a certificate of the Company, signed by the Chairman President or a Vice President of the Board or Company and of the Chief Executive Officer or the principal chief financial or chief accounting officer of the Company, dated as of the Closing DateTime, to the effect that:
that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in this Agreement Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date and Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
Time, and (iiiv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to or are pending or are contemplated by the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Commission.
(he) The Selling Stockholder At the Closing Time, the Underwriter shall have furnished to the Underwriter received from Ernst & Young LLP a certificateletter, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing DateTime, in form and substance reasonably satisfactory to the UnderwriterUnderwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(jf) Subsequent to [RESERVED]
(g) At the Execution Time orClosing Time, if earlierthere shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Prospectus and the Prospectus (exclusive of General Disclosure Package, any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the managementcondition, condition (financial or otherwise), or in the earnings, business business, prospects, properties or properties results of operations of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, isthat, in the sole reasonable judgment of the Underwriter, so material and adverse as makes it impracticable to make it impractical or inadvisable to proceed with the offering or delivery of market the Securities as on the terms and in the manner contemplated by in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(kh) Subsequent to At the Execution Closing Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized approved for trading listing on the New York Stock Exchange, subject only to official notice of issuance.
(i) The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and satisfactory evidence of each such actions Lock-Up Agreement shall be in full force and effect at the Closing Time.
(j) [RESERVED]
(k) At the Closing Time, counsel for the Underwriter shall have been provided furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the Underwriter. If issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementrepresentations or warranties, or if the fulfillment of any of the opinions conditions, herein contained; and certificates mentioned above or elsewhere all proceedings taken by the Company in this Agreement connection with the issuance and sale of the Securities as herein contemplated shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter.
(l) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement and all obligations of may be terminated by the Underwriter hereunder may be canceled at, or by notice to the Company at any time at or prior toto the Closing Time and such termination shall be without liability of any party to any other party except as provided in Section 5(n) and except that Sections 1, 7, 8, 9 and 11 shall survive any such termination and remain in full force and effect.
(m) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date by there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any surveillance or review for a possible change with negative implications or that does not indicate the Underwriter. Notice direction of such cancellation shall be given to the possible change, in the rating accorded the Company and or any of the Selling Stockholder securities of the Company or in writing or the rating outlook for the Company by telephone or facsimile confirmed in writingany “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act. The documents required to be delivered by this Section 6 shall will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, on the Closing DateTime.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Firm Units and any Option Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Partnership Parties contained herein as of the Execution Time and the Closing each Delivery Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Partnership Parties of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused WachtellXxxxxx & Xxxxxx LLP, Lipton, Xxxxx & Xxxx, special Republic of Liberia and Republic of The Xxxxxxxx Islands counsel for the CompanyPartnership Entities, to have furnished to the Underwriter its opinion and negative assurance letterswritten opinion, dated the Closing such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit B.C-1.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company Partnership shall have requested and caused XxxxxxXxxxxx & Xxxxxx L.L.P., Halter & Xxxxxxxx LLP, Ohio U.S. counsel for to the CompanyPartnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit D.C-2.
(ed) The Selling Stockholder Partnership shall have requested and caused Xxxxxx Redo Xxxxxxx Xxxxxxx & Xxxxxxxx LLPAdvogados Associados, special Brazilian counsel for to the Selling StockholderPartnership Entities, to have furnished to the Underwriter its opinion written opinion, dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Closing DateUnderwriter, addressed substantially to the effect set forth in Exhibit C-3.
(e) The Partnership shall have requested and caused Xxxxxx, Xxxxxx & Xxxxxxxx (UK) LLP, special United Kingdom counsel for the Partnership Entities, to have furnished to the Underwriter its written opinion, dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in the form attached hereto as Exhibit E.C-4.
(f) The Partnership shall have requested and caused JLC Advisors LLP, special Singapore counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-5.
(g) The Partnership shall have requested and caused Hanafiah Ponggawa & Partners, special Indonesian counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-6.
(h) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date such Delivery Date, and addressed to the Underwriter, with respect to the sale of the SecuritiesUnits, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Partnership Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gi) The Company Partnership shall have furnished to the Underwriter a certificate of the CompanyPartnership, signed on behalf of the Partnership by the Chairman of the Board or the Chief Principal Executive Officer or and the principal financial or accounting officer of the CompanyPrincipal Financial Officer, dated the Closing such Delivery Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Company Partnership Parties in this Agreement are true and correct on and as of the Closing Date such Delivery Date, with the same effect as if made on such Delivery Date, and each of the Closing Date and the Company has Partnership Parties have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing such Delivery Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued, and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hj) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company Partnership Parties shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing such Delivery Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, as of the Closing and such Delivery Date, in form and substance reasonably satisfactory to the Underwriter, (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, adopted by the Commission and the PCAOB, and (ii) stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the United States.
(jk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kl) Prior to such Delivery Date, the Partnership Parties shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiariesPartnership Entities’ debt securities, if any such securities are outstanding, by any “nationally recognized statistical rating organization” (as defined for purposes within the meaning of Rule 3(a)(62) under 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.
(ln) Prior The Partnership shall have submitted proper notifications regarding the listing of the Units to the Closing DateNASDAQ Global Market.
(o) At the Execution Time, the Company and the Selling Stockholder Partnership Parties shall have furnished to the Underwriter such further information, certificates and documents as a letter substantially in the Underwriter may reasonably requestform of Exhibit A hereto from each of the persons listed on Schedule IV hereto.
(mp) The Securities At the date of this Agreement and such Delivery Date, the Underwriter shall have been listed received from the Partnership a certificate substantially in the form of Exhibit D hereto and admitted and authorized for trading on signed by the New York Stock Exchange, and satisfactory evidence Principal Financial Officer of such actions shall have been provided to the UnderwriterPartnership. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any settlement date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Partnership 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 offices of Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLP, counsel for the UnderwriterXxxxxx L.L.P., 000 Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxxxx & Xxxx, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially as set forth in the form attached hereto as Exhibit D.B.
(ec) The Selling Stockholder Company shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLPYoung, PLLC, regulatory counsel for the Selling StockholderCompany, to have furnished to the Underwriter its opinion opinion, dated the Closing Date, Date and addressed to the Underwriter and substantially as set forth in the form attached hereto as Exhibit E.C.
(fd) Certain Selling Stockholders shall have requested and caused Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for OCM Spirit Holdings III-A, LLC, POF Sprit Domestic Holdings, LLC and POF Spirit Foreign Holdings, LLC to have furnished to the Underwriter their opinions, dated the Closing Date for the Securities and addressed to the Underwriter as set forth in Exhibit D.
(e) The Underwriter shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any amendment or supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gf) The Company shall have furnished to the Underwriter a certificate of the Company, signed executed on its behalf by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hg) The Each Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder reasonably acceptable to counsel to the Underwriter Stockholder, if applicable, or an attorney-in-fact on behalf of such Selling Stockholder, dated the Closing Date, to the effect that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to the same effect as if made on be performed or satisfied at or prior to the Closing Date.
(ih) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter., to the effect set forth in Exhibit E.
(ji) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ih) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder Stockholders shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the each Selling Stockholder 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 Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxxat Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Oaktree Capital Management Lp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx & XxxxLedgewood PC, counsel for the Company, to have furnished to the Underwriter its opinion opinions and negative assurance letters, letter dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date any settlement date and addressed to the Underwriter, substantially Underwriter in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed substance acceptable to the Underwriter, substantially in the form attached hereto as Exhibit D..
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsits opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing DateDate and any settlement date, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder Company shall have furnished to the Underwriter a certificate, certificate signed by an authorized representative the Secretary of the Selling Stockholder reasonably acceptable to counsel to the Underwriter Company, dated the Closing DateDate and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the effect that the representations and warranties of the Selling Stockholder in Offering contemplated by this Agreement are true in full force and correct in effect and have not been modified, (iii) copies of all material respects on written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Closing Date officers of the Company. The documents referred to the same effect as if made on the Closing Datein such certificate shall be attached to such certificate.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Withum to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)and any settlement date, letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the applicable letter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i(f) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(kh) Subsequent to the Execution Time, there FINRA shall not have been raised any decrease in objection with respect to the rating of any fairness or reasonableness of the Company’s underwriting or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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 other arrangements of the possible changetransactions contemplated hereby.
(li) Prior The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter and the Services Agreement.
(k) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) Prior to the Closing Date and any settlement date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxx, unless otherwise indicated herein, on the Closing DateDate and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Ftac Zeus Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); ) and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriter shall have requested and caused Wachtellreceived an opinion, Liptondated the Closing Date, Xxxxx of Skadden, Arps, Slate, Xxxxxxx & XxxxXxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance lettersof Xxxx X. Xxxxxxxxxxx, dated the Closing Date and addressed to the UnderwriterExecutive Vice President, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel and Secretary of the Company, shall have furnished in form and substance satisfactory to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D..
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fc) The Underwriter shall have received from Cravath, Swaine & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Underwriter shall have received from Xxxxxxx Xxxxxx & Green, P.C., special regulatory counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to health regulatory matters in connection with the offer and sale of the Securities.
(e) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman a President or Vice President of the Board or the Chief Executive Officer or Company and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hf) The Selling Stockholder At the time of execution of this Agreement, the Underwriter shall have furnished received from PricewaterhouseCoopers LLP, a letter dated such date, in form and substance satisfactory to the Underwriter a certificateUnderwriter, signed by an authorized representative containing statements and information of the Selling Stockholder reasonably acceptable type ordinarily included in accountants’ “comfort letters” to counsel Underwriters with respect to the Underwriter dated financial statements and certain financial information contained in the Disclosure Package.
(g) At the Closing Date, the Underwriter shall have received from PricewaterhouseCoopers LLP, a letter dated such date, to the effect that they reaffirm the representations and warranties statements made in the letter furnished pursuant to subsection (e) of this Section, except that the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date specified dated referred to the same effect as if made on shall be a date not more than three Business Days prior to the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(jh) Subsequent to the Execution Time date of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph paragraphs (if) and (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ki) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under 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.
(lj) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(l) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each member of executive management and director of the Company addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter and Company, except as provided in Section 7 and except that Sections 1, 5(j), 8 and 10 to 19 shall survive any such termination and remain in full force and effect, hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Cravath, Swaine & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000-0000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Lxxxxx & XxxxWxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its their opinion and negative assurance lettersletter, dated the Closing Date and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel Chief Financial Officer of the Company, Company shall have furnished to the Underwriter her opinion dated the Closing Date and addressed delivered to the Underwriter, substantially in on each of the form attached hereto as Exhibit C.
(d) The Company shall have requested date hereof and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated on the Closing Date, addressed a certificate in a form acceptable to the Underwriter and substantially in the form attached hereto as Exhibit E.Underwriter.
(fd) The Underwriter shall have received from Xxxxx Dxxxx Xxxx & Xxxxxxxx Wxxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsand negative assurance letter, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ge) The Selling Stockholder shall have requested and caused Walkers (Cayman) LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter their opinion dated the Closing Date and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(f) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated material adverse change in the Disclosure Package condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the Prospectus (exclusive ordinary course of any supplement thereto)business.
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(ig) The Company shall have requested and caused each of Ernst Deloitte & Young LLP and KPMG Touche LLP to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing Date, letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters.
(jh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ig) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(li) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Dxxxx Xxxx & Xxxxxxxx Wxxxxxxx, LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx at 1000 Xx Xxxxxx Xxxx, Xxx Xxxx 00000Xxxxx 000, Xxxxx Xxxx, XX 00000 on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Opendoor Technologies Inc.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Securities Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder City contained herein herein, as of the Execution Time date hereof and as of the Closing Date pursuant to Section 3 hereofDate, to the accuracy in all material respects of the statements of the Company officers and other officials of the Selling Stockholder City made in any certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Company and City of its obligations to be performed hereunder at or prior to the Selling Stockholder of their respective obligations hereunder Closing Date and to the following additional conditions:
(a) The ProspectusAt the Closing Date, the Formation Documents and the District Documents shall be in full force and effect, and any supplement thereto, shall not have been filed amended, modified or supplemented, except as may have been agreed to in the manner and within the time period required by Rule 424(b); any other material required to be filed writing by the Company pursuant to Rule 433(d) under the Act Underwriter, and there shall have been filed taken in connection therewith, with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness issuance of the Registration Statement or any notice objecting Bonds and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as, in the opinion of Xxxxx Xxxx, A Professional Corporation (“Xxxxx Xxxx”), Bond Counsel for the City, and Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a Professional Corporation (“Stradling”), counsel to its use the Underwriter, shall have been issued be necessary and no proceedings for that purpose shall have been instituted or threatened.appropriate;
(b) The Company information contained in the Official Statement will, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant to Section 2(g) hereof, be true and correct in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto pursuant to Section 2(g) hereof, contain any 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, in the light of the circumstances under which they were made, not misleading;
(c) Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the City terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (the “SEC”), or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Fiscal Agent Agreement is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any amendment to the federal 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 City or the District, their property, income or securities (or interest thereon), the validity or enforceability of the Special Tax as contemplated by the Formation Documents, the District Documents or the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or the Official Statement, or results in the Preliminary Official Statement or the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States which, in the judgment of the Underwriter, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Bonds on the terms and in the manner contemplated in the Preliminary Official Statement or the Official Statement;
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have requested been fixed and caused Wachtellbe in force, Liptonor maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction that, in the Underwriter’s reasonable judgment, makes it impracticable for the Underwriter to market the Bonds or enforce contracts for the sale of the Bonds;
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds 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, the Underwriter;
(8) the entry of an order by a court of competent jurisdiction which enjoins or restrains the City from issuing permits, licenses or entitlements within the District or which order, in the reasonable opinion of the Underwriter, otherwise materially and adversely affects proposed development of property within the District;
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(10) there shall have been any material adverse change in the affairs of the City that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
(12) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) filing of or threat of litigation of the type described in Section 2(i) hereof.
(d) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Formation Documents and the District Documents, together with a certificate dated as of the Closing Date of the City Clerk of the City to the effect that each Formation Document is a true, correct and complete copy of the one duly adopted by the City Council;
(2) The Official Statement;
(3) An approving opinion for the Bonds, dated the Closing Date and addressed to the City, of Xxxxx & Xxxx, counsel Bond Counsel for the CompanyCity, to have furnished in the form attached to the Underwriter its opinion Preliminary Official Statement as Appendix D, and negative assurance lettersan unqualified letter of such counsel, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her effect that such approving opinion dated the Closing Date and addressed to the Underwriter, substantially in City may be relied upon by the form attached hereto Underwriter to the same extent as Exhibit C.if such opinion was addressed to it;
(d4) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its A supplemental opinion, dated the Closing Date and addressed to the Underwriter, substantially of Xxxxx Xxxx, Bond Counsel for the City, to the effect that (i) this Purchase Agreement, the Escrow Agreement, and the Continuing Disclosure Agreement have been duly authorized, executed and delivered by the City, and, assuming such agreements constitute a valid and binding obligation of the other respective parties thereto, constitute the legally valid and binding agreements of the City for the District enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and may be subject to general principles of equity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Fiscal Agent Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended; (iii) the information contained in the form attached hereto Official Statement on the cover and under the captions “INTRODUCTION,” “THE BONDS” (other than information relating to DTC and its Book-Entry Only System), “SECURITY FOR THE BONDS,” “LEGAL MATTERS – Tax Matters” and Appendices D and G thereof is accurate, insofar as Exhibit D.such information purports to summarize or replicate certain provisions of the Law, the Bonds and the Fiscal Agent Agreement and the exclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds; and (iv) the Prior Bonds have been discharged in accordance with the applicable fiscal agent agreement pursuant to which they were issued;
(e5) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(f) The Underwriter shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsAn opinion, dated the Closing Date and addressed to the Underwriter, of Stradling, counsel for the Underwriter, to the effect that (i) the Bonds are exempt from the registration requirements of the Securities Act of 1933, as amended, and the Fiscal Agent Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (ii) without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the City, Bond Counsel, representatives of the Underwriter, and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no opinion or belief need to be expressed as to any information relating to The Depository Trust Company, or any information relating to CUSIP numbers, or with respect to the sale any financial or statistical data or forecasts or estimates or assumptions or any expressions of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.opinion or appraised or assessed valuations);
(g6) The Company shall have furnished to the Underwriter a A certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or the principal financial or accounting officer of the Companycertificates, dated the Closing DateDate and signed by an authorized officer of the City, to ratifying the effect that:
use and distribution by the Underwriter of the Preliminary Official Statement and the Official Statement in connection with the offering and sale of the Bonds; and certifying that (i) the representations and warranties of the Company City contained in this Agreement Section 2 hereof are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Company Bonds, the Formation Documents and the District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the City has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Formation Documents, the District Documents and the Official Statement at or prior to the Closing Date;
(ii7) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted orAn opinion, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing DateDate and addressed to the Underwriter, of the City Attorney, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested to its current actual knowledge and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, except as disclosed in the case of Ernst & Young LLPOfficial Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body is pending with respect to which the Closing DateCity has been served with process or is known to such counsel to be threatened, letter(s)as to which the City is or would be a party, dated respectively as which would materially adversely affect the ability of the Execution Time andCity or the District to perform their obligations under the Bonds, if applicablethe Formation Documents or the District Documents, as or which seeks to restrain or enjoin the issuance, sale and delivery of the Closing DateBonds or exclusion from gross income for federal income tax purposes or State of California personal income taxes of interest on the Bonds, or the application of the proceeds thereof in form accordance with the Fiscal Agent Agreement, or the collection or application of the Special Tax to pay the principal of and substance reasonably satisfactory to interest on the Underwriter.
(j) Subsequent to Bonds, or which in any way contests or affects the Execution Time or, if earliervalidity or enforceability of the Bonds, the dates as Formation Documents or the District Documents or the accuracy of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any changeOfficial Statement, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties action of the Company or its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as City contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of said documents or the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes development of Rule 3(a)(62) under property within 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.District;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed and have become effective in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx White & XxxxCase LLP, counsel for the Company, to have furnished to the Underwriter its opinion opinions and negative assurance lettersletter, each dated the Closing Date and settlement date, as applicable, and addressed to the Underwriter, substantially in a form reasonably acceptable to the form attached hereto as Exhibit B.Underwriter.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx Xxxxxx and Xxxxxx (Cayman) LLP, Ohio Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinionopinions, each dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, substantially in form and substance reasonably acceptable to the form attached hereto as Exhibit D.Underwriter.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fd) The Underwriter shall have received from Xxxxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or settlement date, as applicable, and addressed to the Underwriter, with respect in form and substance reasonably acceptable to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably requireUnderwriter, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ge) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in by the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(if) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP Withum to have furnished to the Underwriter Underwriter, at the Execution Time and, in the case of Ernst & Young LLP, and at the Closing DateDate or settlement date (as applicable), letter(s)letters, dated respectively as of the Execution Time and, if applicable, and as of the Closing DateDate or settlement date (as applicable), in form and substance reasonably satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 15, 2021 (inception) through [●], provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in its opinion the audited financial statements, the unaudited financial statements and any financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain 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 Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(jg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (iSection 6(f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company or its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under 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.
(lh) Prior to the Closing DateDate or settlement date (as applicable), the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting terms or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been be duly listed and admitted and authorized for trading subject to notice of issuance on the New York Stock ExchangeNasdaq, and satisfactory evidence of such actions which shall have been provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Founder’s Purchase Agreement, the Share Subscription Agreement, the Registration Rights Agreement and the Insider Letter.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Company shall have caused the applicable purchase price for the Private Placement Shares to be deposited into the Trust Account so that together with the net proceeds for the Ordinary Shares (including the Deferred Discount), or with respect to the Optional Securities, the net proceeds from the Optional Securities (including the Deferred Discount), the Trust Account would equal the product of the number of Ordinary Shares sold and the public offering price per Ordinary Share as set forth on the cover of the Prospectus. Notwithstanding the foregoing, in no event will the Company take any action that would result in the Company receiving proceeds from the sale of the Private Placement Shares in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the Purchase Price set forth in the last sentence of Section 2(a) of this Agreement and (iii) the amount of money to be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
(m) No order preventing or suspending the sale of the Ordinary Shares in any jurisdiction designated by the Underwriter pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 6 shall be delivered at the office of Xxxxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx Xxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Helix Acquisition Corp. II)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase borrow the Underwritten Securities and pay the Loan Fee as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of their respective its obligations hereunder and to the following additional conditions:
(ai) The If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(ii) If, at or subsequent to the Execution time it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective, the registration statement or such post-effective amendment shall have become effective no later than such date and time as consented to in writing by you, and all filings, if any, required by Rules 424 and 430A Under the Act shall have been timely made.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Irell & XxxxXxxxxxx LLP, counsel for the Company, to have furnished to the Underwriter its opinion and negative assurance letters, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused Xxxxxx, Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Underwriter its their opinion, dated the Closing Date and addressed to the Underwriter, substantially covering such matters as are typically provided in the opinions delivered in connection with underwritten equity offerings, in form attached hereto as Exhibit D.and substance reasonably satisfactory to you.
(ec) The Selling Stockholder Xxxx, Raywid & Xxxxxxxxx L.L.P., special regulatory counsel to the Company, shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion you their written opinion, dated the Closing Date, addressed in form and substance reasonably satisfactory to you, to the Underwriter effect that:
(i) The issue and substantially sale of the Underwritten Securities and the compliance by the Company with the Share Lending Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Company or any of its subsidiaries or any of their property is subject; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of this Agreement and the Share Lending Agreement and the consummation of the transactions herein and therein contemplated; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in the Prospectus under the caption "Regulation and Legislation" and under the caption "Risk Factors" under the subheading "Risks relating to regulatory and legislative matters," insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(iv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Company’s and the Company’s subsidiaries’ management, the Company and its subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television, industry, to such counsel’s knowledge, based solely upon its review of the publicly available records of the FCC and upon inquiry of the Company’s and its subsidiaries’ management, during the time the cable systems of the Company and its subsidiaries have been owned by the Company and its subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the FCC relating to the ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its subsidiaries or any cable system of the Company or any of its subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
(d) The General Counsel or Acting General Counsel of the Company, shall have furnished to you his written opinion, dated as of the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) Each subsidiary of the Company listed on a schedule attached hereto to such counsel’s opinion (the "Charter Subsidiaries") has been duly incorporated or formed, as Exhibit E.the case may be, and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation; and all the issued shares of capital stock, limited liability company interests or partnership interests, as the case may be, of each Charter Subsidiary are set forth on the books and records of the Company and, except for those Charter Subsidiaries that are general partners, assuming receipt of requisite consideration therefor, are fully paid and nonassessable (in the case of corporate entities) and not subject to additional capital contributions (in the case of limited liability company entities and limited partnerships); and, except as otherwise set forth in the Prospectus, and except for liens not prohibited under the credit agreements listed on such schedule, all outstanding shares of capital stock of each of the Charter Subsidiaries are owned by the Company, either directly or indirectly or through wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(ii) Each of the Company and the Charter Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company, or any of the Company’s subsidiaries is party or of which any property of the Company or any of the Company’s subsidiaries is the subject, of a character required to be disclosed in the Registration Statement, which is not so disclosed, except for such proceedings which are not likely to have, individually or in the aggregate, a Material Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Prospectus, no such proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of the Share Lending Agreement and the consummation of the transactions therein contemplated will not result in a violation of the provisions of the certificate of incorporation or by-laws, or certificate of formation or limited liability company agreement or partnership agreement, as the case may be, of any of the Charter Subsidiaries.
(e) On the Execution Time and also on the Closing Date, KPMG LLP shall have furnished to you a "comfort" letter or letters of the type customarily provided in connection with underwritten equity offerings, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(f) The Underwriter shall have received from Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriter, such opinion or opinionsopinions as are customarily provided by underwriters' counsel in connection with the registration of equity securities in underwritten offerings on Form S-1, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Underwritten Securities, the Registration Statement, the Disclosure Package, Statement and the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s 's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholder shall have furnished to the Underwriter a certificate, signed by an authorized representative of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), dated respectively as of the Execution Time and, if applicable, as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Underwritten Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package thereto) and the Prospectus (exclusive of any amendment or supplement thereto).
(ki) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or its subsidiaries’ 's debt securities by any “"nationally recognized statistical rating organization” " (as defined used for purposes of Rule 3(a)(62436(g) under 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.
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mk) The Underwritten Securities shall have been listed and admitted and authorized for trading on the New York Stock ExchangeNasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation cancelation shall be given to the Company and the Selling Stockholder 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 Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities Firm Units and the Option Units, if any, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Partnership Parties contained herein as of the Execution Time and Time, the Closing Date pursuant to Section 3 hereofand any settlement date, to the accuracy of the statements of the Company and General Partner or the Selling Stockholder Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Partnership Parties of their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused WachtellHolland & Xxxx LLP, LiptonXxxxxxxx, Xxxxxx & Finger P.A. and Xxxxx & Xxxxand Xxxxx LLP, special counsel for the CompanyPartnership, and Xxxxxxx X. Xxxxxxx, general counsel to the General Partner, to have furnished to the Underwriter its opinion and negative assurance letterstheir respective legal opinions, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriter her opinion dated the Closing Date and addressed substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit C.set forth on Exhibits X-0, X-0, X-0 and B-4 hereto.
(di) The In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama, the State of Colorado or the State of Texas, the Delaware Limited Liability Company shall have requested Act or the Delaware Revised Uniform Limited Partnership Act or the federal laws of the United States, to the extent they deem proper and caused Xxxxxxspecified in such opinion, Halter & Xxxxxxxx LLP, Ohio upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the CompanyUnderwriter and (B) as to matters of fact, to have furnished to the Underwriter its opinionextent they deem proper, dated on certificates of responsible officers of the Closing Date General Partner and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.public officials.
(e) The Selling Stockholder shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter its opinion dated the Closing Date, addressed to the Underwriter and substantially in the form attached hereto as Exhibit E.
(fc) The Underwriter shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gd) The Company General Partner shall have furnished to the Underwriter a certificate of the Companyofficers of the General Partner, signed by the Chairman of the Board of Directors or the Chief Executive Officer or President and the principal financial or accounting officer of the CompanyGeneral Partner, dated the Closing Date, Date to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Company Partnership Parties in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has Partnership Parties have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(he) The Selling Stockholder Underwriter shall have furnished to the Underwriter a certificate, signed by an authorized representative received from each of the Selling Stockholder reasonably acceptable to counsel to the Underwriter dated the Closing Date, to the effect that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused each of Ernst & Young PricewaterhouseCoopers LLP and KPMG LLP to have furnished to the Underwriter at the Execution Time and, in the case of Ernst & Young LLP, at the Closing Date, letter(s), customary comfort letters dated respectively as of the Execution Time and, if applicable, and as of the Closing Date, and addressed to the Underwriter in form and substance reasonably the forms satisfactory to the Underwriter, which letters shall cover, without limitation, the Partnership Financial Statements contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus; (ii) UHY LLP customary comfort letters dated respectively as of the Execution Time and as of the Closing Date, and addressed to the Underwriter in the forms satisfactory to the Underwriter, which letters shall cover, without limitation, the High Point System Financial Statements contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus and (iii) MaloneBailey, LLP customary comfort letters dated respectively as of the Execution Time and as of the Closing Date, and addressed to the Underwriter in the forms satisfactory to the Underwriter, which letters shall cover, without limitation, the Blackwater Financial Statements contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(jf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ie) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the Company or its subsidiaries Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(kg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the CompanyPartnership’s or its subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62436(g) under 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.
(lh) Prior to the Closing Date, the Company and the Selling Stockholder Partnership shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(mi) The Securities Firm Units and the Option Units, if any, shall have been listed and admitted and authorized approved for trading listing on the New York Stock Exchange, and satisfactory evidence subject only to official notice of such actions issuance.
(j) At the Execution Time, the parties set forth on Schedule IV hereto shall have been provided furnished to the UnderwriterUnderwriter a letter substantially in the form of Exhibit A hereto. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholder Partnership 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 Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, at 000 Xxxxxxxxx Xxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (American Midstream Partners, LP)
