Conditions to the Obligations of the Underwriter. The obligations of the Underwriter are subject to the condition that the Registration Statement shall remain effective on the date hereof and the Closing Date and no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act nor any proceedings initiated under Sections 8(d) or 8(e) of the Securities Act, and to the following additional conditions. (a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Underwriter’s judgment, is material and adverse and that makes it, in the Underwriter’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and Prospectus. (b) The Underwriter shall have received on the Closing Date a certificate dated the Closing Date and signed by the chief executive officer and chief financial officer of the Company, (i) that such officers have carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and, to the best knowledge of such officers, the representations set forth in Sections 1(a)-(d) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to the effectiveness of the Registration Statement has been issued under the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) of the Securities Act and (iv) that the representations and warranties of the Company contained in this Agreement are true, correct and complete as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Underwriter shall have received on the Closing Date, an opinion of Xxxxxxx LLP, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B. (d) The Underwriter shall have received on the Closing Date, an opinion and letter of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, outside counsel to the Company, dated the Closing Date in the form attached hereto as Exhibit C. (e) The Underwriter shall have received on the Closing Date, an opinion and letter of O’Melveny & Xxxxx LLP, counsel for the Underwriter, dated the Closing Date, in form and substance satisfactory to the Underwriter. (f) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof, and the Closing Date in form and substance reasonably satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (g) The Lock-up Agreements between the Underwriter and the parties set forth on Schedule IV relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to the Underwriter on or before the date hereof, shall be in full force and effect on the Closing Date. (h) On or before the Closing Date, the Underwriter and counsel for the Underwriter shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of any of the conditions or agreements herein contained. (i) The Shares shall have been approved for listing on the NYSE, subject to official notice of issuance.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The ------------------------------------------------ obligations of the Underwriter are to purchase and pay for Certificates on the Closing Date shall be subject to the condition that accuracy of the Registration Statement shall remain effective on representations and warranties of the date hereof and the Closing Date and no stop order with respect Bank contained herein, to the effectiveness accuracy of the Registration Statement shall have been issued statements of the Bank made in any certificates pursuant to the terms hereof, to the performance by the Bank of its obligations hereunder and under the Securities Act nor any proceedings initiated under Sections 8(d) or 8(e) of the Securities Act, applicable Terms Agreement and to the following additional conditions.:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the Chase Securities Inc. September 15, 1997 Page 13 rules and regulations of the Commission under the Act and in accordance with Section 5(a) of this Agreement; and, as of the Closing Date, no stop order suspending the effectiveness of any Registration Statement shall have been issued, and no proceedings for such purpose shall have been instituted or threatened by the Commission; and all requests for additional information from the Commission with respect to any Registration Statement shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) Subsequent to the execution and delivery date of this Agreement and prior to the Closing Date:
(i) Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2(i) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the condition, financial or otherwise, or in the earnings, business or operations properties of the Company and its subsidiaries, taken Bank which materially impairs the investment quality of the Certificates; (ii) any suspension or material limitation of trading of securities generally on the New York Stock Exchange or the American Stock Exchange; (iii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any material outbreak or declaration of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Underwriter’s judgment, is material and adverse and that makes make it, in the judgment of the Underwriter’s judgment, impracticable to market the Shares Certificates on the terms specified herein and in the manner contemplated in the Time of Sale Prospectus and Prospectusapplicable Terms Agreement.
(bc) The Underwriter shall have received on the Closing Date a certificate of a Vice President or other proper officer of the Bank, dated the Closing Date and signed by the chief executive officer and chief financial officer of the CompanyDate, (i) that in which such officers have carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus andofficer, to the best knowledge of such officershis knowledge, the representations set forth in Sections 1(a)-(dshall state that (i) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to the effectiveness of the Registration Statement has been issued under the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) of the Securities Act and (iv) that the representations and warranties of the Company contained Bank in this Agreement are truetrue and correct in all material respects, correct and complete as of (ii) the Closing Date and that the Company Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on at or before the Closing Date. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as prior to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date, an opinion (iii) no stop order suspending the effectiveness of Xxxxxxx LLPa Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission and (iv) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B.light of the circumstances under which they were made, not misleading.
(d) The Underwriter Bank shall have received on furnished to the Underwriter the opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Bank, dated the Closing Date, an opinion and letter of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, outside counsel to in substantially the Company, dated the Closing Date in the form forms attached hereto as Exhibit C.Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received on the Closing Datefrom Skadden, an opinion and letter of O’Melveny Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP, counsel for the Underwriter, one or more opinions, each dated the Closing Date, with respect to the validity of the Certificates, the Initial Registration Statement, the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Uniform Commercial Code, as adopted in the State of Delaware, and such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of the date of the applicable Terms Agreement and as of the Closing Date confirming that they are certified independent public accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall receive evidence satisfactory to them that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement has been duly authorized, executed, and Chase Securities Inc. September 15, 1997 Page 15 delivered by the Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed and authenticated by the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement nor the consummation of any of the transactions contemplated thereby require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By-laws of the Trustee.
(i) The Underwriter shall be named as recipients or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to them that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in form and substance satisfactory which such officer, to the Underwriter.best of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are true and correct. Chase Securities Inc. September 15, 1997 Page 16
(fl) The Underwriter All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof, and the Closing Date be reasonably satisfactory in form and substance reasonably satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The Lock-up Agreements between the Underwriter and the parties set forth on Schedule IV relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to counsel for the Underwriter on or before the date hereof, shall be in full force all material respects and effect on the Closing Date.
(h) On or before the Closing Date, the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents and opinions as they the Underwriter or counsel for the Underwriter may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of request. If any of the conditions or agreements herein contained.
(i) The Shares specified in this Section 7 shall not have been approved for listing on fulfilled in all material respects when and as provided in this Agreement, or if any of the NYSEopinions 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 their counsel, subject this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to official notice of issuancethe Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The ------------------------------------------------ obligations of the Underwriter are to purchase and pay for Certificates on the Closing Date shall be subject to the condition that accuracy of the Registration Statement shall remain effective on representations and warranties of the date hereof and the Closing Date and no stop order with respect Bank contained herein, to the effectiveness accuracy of the Registration Statement shall have been issued statements of the Bank made in any certificates pursuant to the terms hereof, to the performance by the Bank of its obligations hereunder and under the Securities Act nor any proceedings initiated under Sections 8(d) or 8(e) of the Securities Act, applicable Terms Agreement and to the following additional conditions.:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the rules and regulations of the Commission under the Act and in accordance with Section 5(a) of this Agreement; and, as of the Closing Date, no stop order suspending the effectiveness of any Registration Statement shall have been issued, and no proceedings for such purpose shall have been instituted or Chase Securities Inc. December 17, 1997 Page 16 threatened by the Commission; and all requests for additional information from the Commission with respect to any Registration Statement shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) Subsequent to the execution and delivery date of this Agreement and prior to the Closing Date:
(i) Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2(i) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the condition, financial or otherwise, or in the earnings, business or operations properties of the Company and its subsidiaries, taken Bank which materially impairs the investment quality of the Certificates; (ii) any suspension or material limitation of trading of securities generally on the New York Stock Exchange or the American Stock Exchange; (iii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any material outbreak or declaration of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Underwriter’s judgment, is material and adverse and that makes make it, in the judgment of the Underwriter’s judgment, impracticable to market the Shares Certificates on the terms specified herein and in the manner contemplated in the Time of Sale Prospectus and Prospectusapplicable Terms Agreement.
(bc) The Underwriter shall have has received on the Closing Date a certificate of a Vice President or other proper officer of the Bank, dated the Closing Date and signed by the chief executive officer and chief financial officer of the CompanyDate, (i) that in which such officers have carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus andofficer, to the best knowledge of such officershis knowledge, the representations set forth in Sections 1(a)-(dshall state that (i) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to the effectiveness of the Registration Statement has been issued under the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) of the Securities Act and (iv) that the representations and warranties of the Company contained Bank in this Agreement are truetrue and correct in all material respects, correct and complete as of (ii) the Closing Date and that the Company Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on at or before the Closing Date. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as prior to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date, an opinion (iii) no stop order suspending the effectiveness of Xxxxxxx LLPa Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission and (iv) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B.light of the circumstances under which they were made, not misleading.
(d) The Underwriter Bank shall have received on furnished to the Underwriter the opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Chase Securities Inc. December 17, 1997 Page 17 Bank, dated the Closing Date, an opinion and letter of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, outside counsel to in substantially the Company, dated the Closing Date in the form forms attached hereto as Exhibit C.Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received on the Closing Datefrom Skadden, an opinion and letter of O’Melveny Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP, counsel for the Underwriter, one or more opinions, each dated the Closing Date, with respect to the validity of the Certificates, the Initial Registration Statement, the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Uniform Commercial Code, as adopted in the State of Delaware, and such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of the date of the applicable Terms Agreement and as of the Closing Date confirming that they are certified independent public accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall receive evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement has been duly authorized, executed, and delivered by the Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed and authenticated by the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement nor the consummation of any of the transactions contemplated thereby require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not Chase Securities Inc. December 17, 1997 Page 19 conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By-laws of the Trustee.
(i) The Underwriter shall be named as recipient or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to it that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in form and substance satisfactory which such officer, to the Underwriterbest of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are true and correct.
(fl) The Underwriter All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof, and the Closing Date be reasonably satisfactory in form and substance reasonably satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The Lock-up Agreements between the Underwriter and the parties set forth on Schedule IV relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to counsel for the Underwriter on or before the date hereof, shall be in full force all material respects and effect on the Closing Date.
(h) On or before the Closing Date, the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents and opinions as they the Underwriter or counsel for the Underwriter may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of request. If any of the conditions or agreements herein contained.
(i) The Shares specified in this Section 7 shall not have been approved for listing on fulfilled in all material respects when and as provided in this Agreement, or if any of the NYSEopinions 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 their counsel, subject this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to official notice of issuancethe Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The ------------------------------------------------ obligations of the Underwriter are to purchase and pay for Certificates on the Closing Date shall be subject to the condition that accuracy of the Registration Statement shall remain effective on representations and warranties of the date hereof and the Closing Date and no stop order with respect Bank contained herein, to the effectiveness accuracy of the Registration Statement shall have been issued statements of the Bank made in any certificates pursuant to the terms hereof, to the performance by the Bank of its obligations hereunder and under the Securities Act nor any proceedings initiated under Sections 8(d) or 8(e) of the Securities Act, applicable Terms Agreement and to the following additional conditions.:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the Chase Securities Inc. December 10, 1997 Page 13 rules and regulations of the Commission under the Act and in accordance with Section 5(a) of this Agreement; and, as of the Closing Date, no stop order suspending the effectiveness of any Registration Statement shall have been issued, and no proceedings for such purpose shall have been instituted or threatened by the Commission; and all requests for additional information from the Commission with respect to any Registration Statement shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) Subsequent to the execution and delivery date of this Agreement and prior to the Closing Date:
(i) Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2(i) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the condition, financial or otherwise, or in the earnings, business or operations properties of the Company and its subsidiaries, taken Bank which materially impairs the investment quality of the Certificates; (ii) any suspension or material limitation of trading of securities generally on the New York Stock Exchange or the American Stock Exchange; (iii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any material outbreak or declaration of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Underwriter’s judgment, is material and adverse and that makes make it, in the judgment of the Underwriter’s judgment, impracticable to market the Shares Certificates on the terms specified herein and in the manner contemplated in the Time of Sale Prospectus and Prospectusapplicable Terms Agreement.
(bc) The Underwriter shall have has received on the Closing Date a certificate of a Vice President or other proper officer of the Bank, dated the Closing Date and signed by the chief executive officer and chief financial officer of the CompanyDate, (i) that in which such officers have carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus andofficer, to the best knowledge of such officershis knowledge, the representations set forth in Sections 1(a)-(dshall state that (i) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to the effectiveness of the Registration Statement has been issued under the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) of the Securities Act and (iv) that the representations and warranties of the Company contained Bank in this Agreement are truetrue and correct in all material respects, correct and complete as of (ii) the Closing Date and that the Company Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on at or before the Closing Date. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as prior to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date, an opinion (iii) no stop order suspending the effectiveness of Xxxxxxx LLPa Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission and (iv) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B.light of the circumstances under which they were made, not misleading.
(d) The Underwriter Bank shall have received on furnished to the Underwriter the opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Bank, dated the Closing Date, an opinion and letter of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, outside counsel to in substantially the Company, dated the Closing Date in the form forms attached hereto as Exhibit C.Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received on the Closing Datefrom Skadden, an opinion and letter of O’Melveny Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP, counsel for the Underwriter, one or more opinions, each dated the Closing Date, with respect to the validity of the Certificates, the Initial Registration Statement, the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Uniform Commercial Code, as adopted in the State of Delaware, and such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of the date of the applicable Terms Agreement and as of the Closing Date confirming that they are certified independent public accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall receive evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement has been duly authorized, executed, and delivered by the Chase Securities Inc. December 10, 1997 Page 15 Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed and authenticated by the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement nor the consummation of any of the transactions contemplated thereby require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By- laws of the Trustee.
(i) The Underwriter shall be named as recipient or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to it that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in form and substance satisfactory which such officer, to the Underwriterbest of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are true and correct.
(fl) The Underwriter All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof, and the Closing Date be reasonably satisfactory in form and substance reasonably satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The Lock-up Agreements between the Underwriter and the parties set forth on Schedule IV relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to counsel for the Underwriter on or before the date hereof, shall be in full force all material respects and effect on the Closing Date.
(h) On or before the Closing Date, the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents and opinions as they the Underwriter or counsel for the Underwriter may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of request. If any of the conditions or agreements herein contained.
(i) The Shares specified in this Section 7 shall not have been approved for listing on fulfilled in all material respects when and as provided in this Agreement, or if any of the NYSEopinions 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 their counsel, subject this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to official notice of issuancethe Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter are to purchase the Bonds shall be subject to the condition that accuracy of the Registration Statement shall remain effective representations and warranties on the date hereof part of the Issuer and the Company contained herein as of the Execution Time and the Closing Date and on the part of the Company contained in Article 3 of the Sale Agreement and in Section 6.01 of the Servicing Agreement as of the Closing Date, to the accuracy of the statements of the Issuer and the Company made in any certificates pursuant to the provisions hereof, to the performance by the Issuer and the Company of their obligations hereunder to be performed on or prior to the Closing Date and to the following additional conditions:
(a) 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 (Eastern Daylight Time), on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM (Eastern Daylight Time) on such date, or (ii) 12:00 Noon (Eastern Daylight Time) on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM (Eastern Daylight 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 such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act nor any and no proceedings initiated under Sections 8(d) or 8(e) of the Securities Act, and to the following additional conditions.
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there for that purpose shall not have occurred any downgrading, nor shall any notice have been given of any intended instituted or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Underwriter’s judgment, is material and adverse and that makes it, in the Underwriter’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and Prospectusthreatened.
(b) The Underwriter shall have received on opinions of counsel for the Closing Date a certificate Company, portions of which may be delivered by Day, Xxxxx & Xxxxxx LLP, outside counsel for the Company, portions of which may be delivered by Xxxx, Xxxxx and Xxxxxxxxxx, Professional Association, outside counsel for the Company, and portions of which may be delivered by in-house counsel for the Company, as the Underwriter may agree, each dated the Closing Date Date, in form and signed substance reasonably satisfactory to the Underwriter, to the effect that:
(i) the Company is a validly existing corporation in good standing under the laws of the jurisdiction in which it is chartered or organized and has all requisite corporate power and authority to own its properties, conduct its business as described in the Registration Statement and the Prospectus, and to execute, deliver and perform its obligations under this Agreement, the Sale Agreement, the Servicing Agreement and the Administration Agreement;
(ii) the Sale Agreement, the Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by, and constitute legal, valid and binding instruments enforceable against, the Company in accordance with their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect); this Agreement has been duly authorized, executed and delivered by the chief executive officer Company;
(iii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its affiliates or challenging the Finance Order or the collection of the RRB Charges or the use and chief financial officer enjoyment of RRB Property under the Statute of a character required to be disclosed in the 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 the Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required;
(iv) no consent, approval, authorization or order of any court or governmental agency or body is required to be obtained by the Company for the consummation of the transactions contemplated herein, except such as have been obtained in accordance with New Hampshire RSA Chapter 369-B (the "Statute"), the NHPUC Regulations (as defined in Section 1.01 of the Servicing Agreement), the Public Utility Holding Company Act of 1935, as amended (the "1935 Act") and the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Bonds by the Underwriter and such other approvals (specified in such opinion) as have been obtained;
(v) neither the execution and delivery of this Agreement, the Sale Agreement, the Servicing Agreement, the Administration Agreement nor the consummation of the transactions contemplated by this Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement nor the fulfillment of the terms of this Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement by the Company, will (A) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under the articles of incorporation, bylaws or other organizational documents of the Company, or conflict with or breach any of the material terms or provisions of, or constitute (iwith or without notice or lapse of time) a default under, any indenture, material agreement or other material instrument to which the Company is a party or by which the Company is bound, (B) result in the creation or imposition of any lien upon any properties of the Company pursuant to the terms of any such indenture, agreement or other instrument (other than as contemplated by the Basic Documents and RSA 369-B:7), or (C) violate any New Hampshire or federal law or any order, rule or regulation applicable to the Company of any New Hampshire or federal court or regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Company, or any of its properties; and
(vi) upon the delivery of the fully executed Sale Agreement to the Issuer and the payment of the purchase price of the RRB Property by the Issuer to the Seller pursuant to the Sale Agreement, then (A) the transfer of the RRB Property by the Seller to the Issuer pursuant to the Sale Agreement conveys the Seller's right, title and interest in the RRB Property to the Issuer and will be treated under the laws of the State of New Hampshire as an absolute transfer of all of the Seller's right, title, and interest in the RRB Property, other than for federal and state income tax purposes, (B) such transfer of the RRB Property is perfected within the meaning of RSA 369-B:6, VI, (C) assuming that the Issuer does not have notice or knowledge of any conflicting assignment of the RRB Property, such officers have carefully reviewed transfer has priority over any other assignment or transfer of the Registration StatementRRB Property, and (D) the RRB Property is free and clear of all liens created prior to its transfer to the Issuer pursuant to the Sale Agreement; the Seller's first mortgage indenture explicitly excludes accounts receivables and contracts from its lien and, therefore, the Time of Sale Prospectus and the Prospectus and, RRB Property is not subject to the best knowledge of such officers, the representations set forth in Sections 1(a)-(dlien;
(vii) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order further action with respect to the effectiveness recording or filing of the Registration Statement has been issued under Sale Agreement, any agreements supplemental thereto, any financing statements, any continuation statements, or any other documents or filings will be necessary prior to March 31, 2003, to perfect the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) transfer of the Securities Act RRB Property by the Company to the Issuer pursuant to the Sale Agreement; and
(viii) the Indenture is enforceable against the Trustee in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws or equitable principles affecting creditors' rights generally from time to time in effect). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New Hampshire or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriter and (ivB) that as to matters of fact, to the representations and warranties extent deemed proper, on certificates of responsible officers of the Company contained Company. References to the Final Prospectus in this Agreement are true, correct and complete as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before paragraph (b) include any supplements thereto at the Closing Date. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date, an opinion opinions of Xxxxxxx LLP, Maryland counsel for the Issuer and the Company, dated the Closing Date in the form attached hereto as Exhibit B.
(d) The Underwriter shall have received on the Closing Dateportions of which may be delivered by Day, an opinion and letter of Paul, Hastings, Xxxxxxxx Xxxxx & Xxxxxx LLP, outside counsel to for the Issuer and the Company, dated the Closing Date in the form attached hereto as Exhibit C.
(e) The Underwriter shall have received on the Closing Dateportions of which may be delivered by Xxxx, an opinion Young and letter of O’Melveny & Xxxxx LLPPignatelli, Professional Association, outside counsel for the UnderwriterIssuer and the Company, and portions of which may be delivered by in-house counsel, as the Underwriter may agree, and portions of which may be delivered by Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Issuer, each dated the Closing Date, in form and substance satisfactory to the Underwriter.
(f) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof, and the Closing Date in form and substance reasonably satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, containing statements to the effect that:
(i) the Issuer has been duly formed and information is validly existing in good standing as a limited liability company under the laws of the type ordinarily included State of Delaware, with all necessary limited liability company power and authority to execute, deliver and perform its obligations under this Agreement, the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement, the Fee and Indemnity Agreement and the Bonds and is registered as a foreign limited liability company and is in accountants’ “comfort letters” good standing in the State of New Hampshire;
(ii) the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement and the Fee and Indemnity Agreement have been duly authorized, executed and delivered by, and constitute legal, valid and binding instruments enforceable against, the Issuer in accordance with their terms (subject to underwriters applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect); and the Bonds have been duly authorized and when executed and authenticated in accordance with respect the provisions of the Indenture and delivered to and paid for by the Underwriter in accordance with the terms of this Agreement, will constitute legal, valid and binding obligations of the Issuer entitled to the financial statements benefits of the Indenture (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect); this Agreement has been duly authorized, executed and certain financial information delivered by the Issuer;
(iii) to the extent described in the Final Prospectus, the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement, the Fee and Indemnity Agreement, the LLC Agreement and the Bonds conform to the descriptions thereof contained therein;
(iv) the Indenture has been duly qualified under the Trust Indenture Act;
(v) to the knowledge of such counsel, after having made inquiry of officers of the Issuer, but without having made any other investigation, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Issuer or challenging the Bonds, the Finance Order, the settlement order issued by the NHPUC on September 8, 2000 (the "Settlement Order") or the collection of the RRB Charge or the use and enjoyment of RRB Property under the Statute of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or incorporated by reference other document relating to the Issuer, the Bonds, the Statute or the Finance Order of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, the Time of Sale Prospectus which is not described or filed as required; and the statements included in the Final Prospectus provided that under the letter delivered on headings "Risk Factors -- Bondholders could experience payment delays or losses as a result of amendment, repeal or invalidation of the Closing Date shall use a “cut-off date” not earlier than securitization statute or breach of the date hereof.
state pledge," "Energy Deregulation and New Market Structure in New Hampshire," (g) The Lock-up Agreements to the extent the Statute, the Finance Order, the Settlement Order, or the Agreement to Settle PSNH Restructuring between the Underwriter Governor of New Hampshire, the Company, the NHPUC and the other parties set forth on Schedule IV relating to sales named therein, dated August 2, 1999, and certain other dispositions of shares of Class A Common Stock or certain other securitiessuch agreement as revised and conformed in compliance with NHPUC Order No. 23,549 (together, delivered the "Settlement Agreement") is described), "The Issuer," "Servicing" (to the Underwriter on extent the Servicing Agreement or before the date hereofFinance Order is described), shall be in full force and effect on the Closing Date.
(h) On or before the Closing Date, the Underwriter and counsel for the Underwriter shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale "Description of the Shares Bonds," "The Seller and Servicer" (other than under the subheading "Billing and Collections," as contemplated hereinto which such counsel need express no opinion), or in order to evidence the accuracy of any "Description of the representations RRB Property," "ERISA Considerations" and warranties or the satisfaction of any "Risk Factors - Bankruptcy and Creditors' Rights Issues" (read together with "Description of the conditions RRB Property - Bankruptcy and Creditors' Rights Issues"), to the extent that they constitute matters of New Hampshire or agreements herein contained.
(i) The Shares shall have been approved for listing on federal law or legal conclusions with respect thereto, fairly summarize the NYSE, subject to official notice of issuance.matters described therein;
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter are to purchase and pay for the Junior Notes will be subject to the condition that accuracy of the Registration Statement shall remain effective representations and warranties on the part of the Banks herein on the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Banks made pursuant to the provisions hereof, to the performance by the Banks of their respective obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date hereof the Class B and Class C 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 Class B and Class C 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 Class B and Class C 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 shall have been filed in the manner and within the time period required by Rule 424(b) of the Rules and Regulations; and prior to the Closing Date, no stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act nor any and no proceedings initiated under Sections 8(d) for that purpose shall have been instituted or 8(e) of the Securities Act, and to the following additional conditions.threatened;
(ac) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2(i) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the conditionbusiness or properties of any of the Banks, financial The Chase Manhattan Corporation, CITSF or otherwiseThe CIT Group, Inc. which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Junior Notes or makes it impractical to market the Junior Notes; (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 any of the Banks or The Chase Manhattan Corporation, on any exchange or in the earnings, business over-the-counter market by such exchange or operations 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 the Company and its subsidiaries, taken as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of major hostilities or any amendments other substantial national or supplements thereto subsequent to the date of this Agreement) thatinternational calamity or emergency if, in the reasonable judgment of the Class B and Class C Underwriter’s judgment, is material and adverse and that makes itthe effect of any such outbreak, in the Underwriter’s judgmentescalation, impracticable to market the Shares calamity or emergency on the terms United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and in any payment for the manner contemplated in the Time of Sale Prospectus and Prospectus.Junior Notes;
(bd) The Class B and Class C Underwriter shall have received on the Closing Date a certificate opinions, dated the Closing Date and signed reasonably satisfactory, when taken together, in form and substance to the Class B and Class C Underwriter, of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Banks, Xxxxxxxx, Xxxxxx & Finger, special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Class B and Class C Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(e) The Class B and Class C Underwriter shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the chief executive officer Banks, dated the Closing Date and chief financial officer satisfactory in form and substance to the Class B and Class C Underwriter, with respect to certain matters relating to the transfers from each Bank to the Trust of its Receivables, with respect to the perfection of the CompanyTrust's interest in the Receivables transferred by Chase and with respect to the grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, Special Counsel to the Trust, with respect to the perfection of the Trust's interest in the Receivables transferred by Chase USA and the Indenture Trustee's interests in the Receivables;
(if) that The Class B and Class C Underwriter shall have received from Xxxxxx X. Xxxxx, Senior Vice President, Secretary and General Counsel of the Servicer, such officers opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to corporate matters;
(g) The Class B and Class C Underwriter shall have carefully reviewed received from Xxxxxx X. Xxxxxx, counsel to the Sellers, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to certain matters relating to the transfer to the Trust of Preferred Ship Mortgages in accordance with the Ship Mortgage Statutes and other related matters as the Class B and Class C Underwriter may require;
(h) The Class B and Class C Underwriter shall have received from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Class B and Class C Underwriter, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to the validity of the Junior Notes, the Registration Statement, the Time of Sale Prospectus and other related matters as the Prospectus and, to the best knowledge of such officers, the representations set forth in Sections 1(a)-(d) hereof are true Class B and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to the effectiveness of the Registration Statement has been issued under the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) of the Securities Act and (iv) that the representations and warranties of the Company contained in this Agreement are true, correct and complete as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificate Class C Underwriter may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date, an opinion of Xxxxxxx LLP, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B.
(d) The Underwriter shall have received on the Closing Date, an opinion and letter of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, outside counsel to the Company, dated the Closing Date in the form attached hereto as Exhibit C.
(e) The Underwriter shall have received on the Closing Date, an opinion and letter of O’Melveny & Xxxxx LLP, counsel for the Underwriter, dated the Closing Date, in form and substance satisfactory to the Underwriter.
(f) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereofrequire, and the Closing Date in form and substance Banks shall have furnished to such counsel such documents as they reasonably satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The Lock-up Agreements between the Underwriter and the parties set forth on Schedule IV relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to the Underwriter on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) On or before the Closing Date, the Underwriter and counsel request for the Underwriter shall have received such information, documents and opinions as they may reasonably require for the purposes purpose of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of any of the conditions or agreements herein contained.such matters;
(i) The Shares Class B and Class C Underwriter shall have received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special U.S. tax counsel to the Banks, dated the Closing Date and reasonably satisfactory in form and substance to the Class B and Class C Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(j) The Class B and Class C Underwriter shall have received an opinion of Xxxxx & Xxxxxxx, P.C., special Oklahoma tax counsel to the Banks, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to such matters as are customary for the type of transaction covered by this Agreement;
(k) The Class B and Class C Underwriter shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter 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 office of the general counsel to the Indenture Trustee.
(l) The Class B and Class C Underwriter shall have received an opinion of counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Class B and Class C Underwriter and its counsel, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(m) The Class B Notes have been rated at least "AA" by Standard & Poor's, "A1" by Xxxxx'x and "AA" by Xxxx & Xxxxxx and the Class C Notes have been rated at least "A-" by Standard & Poor's, "Baa2" by Xxxxx'x and "A-" by Xxxx & Xxxxxx. Each class of Senior Notes shall have been approved for listing on the NYSErated "AAA" by Standard & Poor's, subject to official notice of issuance.Aaa by Xxxxx'x and "AAA" by Xxxx & Xxxxxx;
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter are subject hereunder, as to the Shares to be delivered at each Delivery Date, shall be subject, in its discretion, to the condition that all representations and warranties and other statements of the Registration Statement shall remain effective on Company herein are, at and as of the date hereof and each Delivery Date, true and correct and the Closing Date condition that the Company shall have performed all of its obligations hereunder theretofor to be performed, and the following additional conditions:
(a) The Prospectus, and, any such supplement, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); no stop order suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or, 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 your reasonable satisfaction.
(b) On each Delivery Date, Squire, Xxxxxxx & Xxxxxxx (US) LLP, counsel for the Underwriter, shall have furnished to you an opinion or opinions, dated such dates, with respect to the effectiveness issuance and sale of the Shares on each such Delivery Date, the Registration Statement Statement, the Disclosure Package, the Prospectus, and other related matters as you may reasonably request, and such counsel shall have been issued under the Securities Act nor any proceedings initiated under Sections 8(d) or 8(e) of the Securities Act, received such papers and information as they may reasonably request to the following additional conditionsenable them to pass upon such matters.
(ac) Subsequent On each Delivery Date, Xxxxxx Xxxxxx Rosenman LLP (“Katten”), counsel for the Company, shall have furnished to you its written opinion, dated such dates, in form and substance satisfactory to you, to the execution and delivery of this Agreement and prior to the Closing Dateeffect that:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of Neither the Company or any of nor its subsidiaries by any are an “nationally recognized statistical rating organization,investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(ii) The Company and its subsidiaries have been duly incorporated or organized and are validly existing as corporations or limited liability companies, as applicable, in good standing under the laws of their respective jurisdictions of incorporation or organization, with corporate power and authority to own or lease their respective properties and conduct their respective businesses as described in the Disclosure Package and the Prospectus, and each of the Company and its subsidiaries is duly qualified to do business and are in good standing in each jurisdiction in which it owns or leases property or conducts business so as to require such qualification except where the failure to so qualify would not result in a Material Adverse Effect;
(iii) All of the issued shares of capital stock of the Company have been duly authorized and validly issued and conform to the description contained in the Prospectus; and there are no preemptive or similar rights to subscribe for purposes or to purchase any securities of Rule 436(g)(2the Company under the Amended and Restated Certificate of Incorporation of the Company or under Delaware law;
(iv) The Registration Statement has been declared effective under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations required filing of the Company and its subsidiaries, taken as a wholeProspectus, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent thereto, pursuant to the date of this AgreementRule 424(b) that, in the Underwriter’s judgment, is material and adverse and that makes it, in the Underwriter’s judgment, impracticable to market the Shares on the terms and has been made in the manner contemplated in and within the Time of Sale Prospectus and Prospectus.
(b) The Underwriter shall have received on the Closing Date a certificate dated the Closing Date and signed time period required by the chief executive officer and chief financial officer of the Company, (i) that such officers have carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus andRule 424(b), to the best knowledge of such officerscounsel, the representations set forth in Sections 1(a)-(d) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened under the Securities Act nor any proceedings Act;
(v) The Shares have been initiated duly authorized and, when issued and delivered against payment therefor as provided herein, will be validly issued and fully paid and nonassessable and conform to the description of the Shares contained in the Prospectus, as amended or supplemented, and will be free of statutory preemptive rights and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(vi) To such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or its subsidiaries is subject which, if determined adversely to the Company or its subsidiaries would individually or in the aggregate, have a Material Adverse Effect, and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws);
(viii) The issuance and sale of the Shares and the performance of this Agreement by the Company and the consummation of the other transactions contemplated by this Agreement will not result in any violation of the provisions of the certificate of incorporation, bylaws, articles of organization or operating agreement of the Company or its subsidiaries, as applicable, or of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or its subsidiaries or any of their respective properties;
(ix) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Shares by the Company or the consummation by the Company of the other transactions contemplated by this Agreement, except such as have been obtained under Sections 8(dthe Securities Act, such as may be required under state securities or Blue Sky laws, any necessary listing application with NASDAQ, and such as may be required under the rules of FINRA in connection with the purchase and distribution of the Shares by the Underwriter;
(x) or 8(eThe Registration Statement, the Disclosure Package and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Delivery Date (other than the financial statements and related schedules and other financial and statistical information included therein and information furnished for use therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations thereunder; the eligibility requirements for the use of Form S-3 in connection with the registration of Shares were met at the time of filing the Registration Statement; and the Registration Statement meets, and the offering and sale of the Shares as contemplated by the Underwriting Agreement complies with, the requirements of Rule 415 under the Act;
(ivxi) that the representations The Amended and warranties Restated Certificate of Incorporation of the Company contained and the Second Amended and Restated By-laws of the Company, each in this Agreement the form filed as an exhibit to the Registration Statement, have been duly adopted and are true, correct in full force and complete effect as of the Closing Date date hereof, in each case in accordance with the Delaware General Corporation Law, and the Amended and Restated Certificate of Incorporation has been filed as required with the Secretary of State of Delaware;
(xii) The Shares are duly listed and authorized for trading, subject to official notice of issuance, on The NASDAQ Stock Market;
(xiii) To such counsel’s knowledge, there are no contracts, licenses, agreements, leases or documents of any character that are required to be described in the Registration Statement, the Disclosure Package and the Prospectus or to be filed as an exhibit to the Registration Statement, the Disclosure Package and the Prospectus that have not been so described or filed as required; and
(xiv) Except for the rights described in the Prospectus that have not been exercised, no person has the right, pursuant to the terms of any contract, agreement or other instrument described in or filed as an exhibit to the Registration Statement or any Incorporated Documents, or otherwise known to us, to cause the Company has complied with all to register under the Securities Act any shares of capital stock of the agreements and satisfied all Company or to include any such shares in the Registration Statement or the offering contemplated thereby. In rendering such opinions, such counsel may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the conditions on Company and its part subsidiaries, and public officials. On each Delivery Date, Katten shall also deliver a letter to you stating that nothing has come to its attention which leads it to believe that, as of the effective date of the Registration Statement and as of each Delivery Date, the Registration Statement, the Disclosure Package or the Prospectus or, as of its date, any further amendment or supplement thereto made by the Company prior to the Delivery Date (in each case, except for the financial statements and the related schedules and other financial and statistical information included therein, as to which such counsel need not address) contains an untrue statement of a material fact or omits to state a material fact required to be performed stated therein or satisfied hereunder on or before necessary to make the Closing Datestatements therein, in the light of the circumstances under which they were made, not misleading. The officers signing and delivering With respect to such certificate statement, such counsel may rely state that its belief is based upon the best of his procedures set forth therein, but is without independent check or her knowledge as to proceedings threatenedverification.
(c) The Underwriter shall have received on the Closing Date, an opinion of Xxxxxxx LLP, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B.
(d) The Underwriter At 10:00 a.m., Richmond, Virginia time, on the date of this Agreement and also at each Delivery Date, Xxxxx Xxxxxxxx LLP shall have received on the Closing Date, an opinion and furnished to you a letter of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, outside counsel to the Companyor letters, dated the Closing Date in the form attached hereto as Exhibit C.
(e) The Underwriter shall have received on the Closing Date, an opinion and letter respective dates of O’Melveny & Xxxxx LLP, counsel for the Underwriter, dated the Closing Datedelivery thereof, in form and substance satisfactory to the Underwriter.
(f) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof, and the Closing Date in form and substance reasonably satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountantsyou, 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 contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus Disclosure Package and the Prospectus.
(i) The Company and its subsidiaries shall not have sustained since the date of the latest audited financial statements included in the Prospectus, any loss or interference with their respective businesses from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or expressly contemplated in the Disclosure Package and the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus provided that there shall not have been any change in the letter capital stock or long-term debt of the Company or its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company or its subsidiaries, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Delivery Date on the Closing Date terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall use not have occurred any of the following: (i) a “cut-off date” not earlier than suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on the NASDAQ; or (iii) (A) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, or (B) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, including without limitation, as a result of terrorist activities occurring after the date hereof, if the effect of any such event specified in clause (A) or (B), in the judgment of the Underwriter makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Delivery Date on the terms and in the manner contemplated in the Disclosure Package or Prospectus.
(g) The Lock-up Agreements Company shall have furnished or caused to be furnished to you copies of agreements between the Underwriter Company and each of the parties set forth executive officers and directors of the Company named on Schedule IV relating III hereto, in form and content satisfactory to sales and certain other dispositions you, pursuant to which such persons agree not to offer, sell, or contract to sell, or otherwise dispose of any shares of Class A the Common Stock beneficially owned by them, or certain other securitiesany securities convertible into, delivered to the Underwriter or exchangeable for, shares of Common Stock on or before the ninetieth (90th) day after the date hereof, shall be in full force and effect on the Closing Dateof this Agreement without your prior written consent.
(h) On or before the Closing Date, the Underwriter and counsel for the Underwriter The Company shall have received such information, documents furnished or caused to be furnished to you on the date of this Agreement and opinions as they may reasonably require for the purposes on each Delivery Date certificates of enabling them to pass upon the issuance and sale officers of the Shares Company satisfactory to you as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of any of the conditions 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 agreements herein containedprior to such Delivery Date, as to the matters set forth in subsections (a) and (e) of this Section 7 and as to such other matters as you may reasonably request.
(i) The Shares shall have been approved for listing quotation and trading on the NYSENASDAQ.
(j) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, subject or other arrangements of the transactions contemplated hereby. If any of the conditions specified in this Section 7 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 official notice the Underwriter and its counsel, this Agreement and all obligations of issuancethe Underwriter hereunder may be canceled at, or at any time prior to, each Delivery Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile (with written confirmation of receipt).
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter are to offer the Shares for sale on a best efforts basis pursuant hereto shall be subject to the condition that accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof, as of the date of each Final Prospectus, as of the date of the effectiveness of any amendment to the Registration Statement shall remain effective on the date hereof and the Closing Date and no stop order with respect filed prior to the effectiveness first time of purchase occurring hereunder (including the filing of any document incorporated by reference therein) and as of each time of purchase occurring hereunder, to the accuracy of the Registration Statement shall have been issued under the Securities Act nor any proceedings initiated under Sections 8(d) or 8(e) statements of the Securities ActCompany made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions.:
(a) Subsequent No stop order suspending the effectiveness of the Registration Statement, as amended from time to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there time, shall not have occurred any downgrading, nor shall any notice have been given of issued and no proceedings for that purpose shall have been instituted or threatened; and any intended or potential downgrading or of any review for a possible change that does not indicate Final Prospectus shall have been filed with the direction of Commission within the possible change, in time period prescribed by the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Underwriter’s judgment, is material and adverse and that makes it, in the Underwriter’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and ProspectusCommission.
(b) The Company shall have furnished to the Underwriter the opinion of White & Case LLP, counsel for the Company, dated the first time of purchase occurring hereunder substantially in the form attached hereto as Exhibit A.
(c) The Company shall have furnished to the Underwriter the opinion of White & Case LLP, counsel for the Company, dated the first time of purchase occurring hereunder, as to certain intellectual property matters.
(d) The Representatives shall have received on from counsel for the Closing Date Underwriter, such opinion or opinions, dated the first time of purchase occurring hereunder, with respect to the issuance and sale of the Shares, the Registration Statement, the Final Prospectus and other related matters as the Underwriter may reasonably 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.
(e) The Company shall have furnished to the Underwriter a certificate dated of the Closing Date and Company, signed by the chief executive officer President and chief Chief Executive Officer or a Senior Vice President and the principal financial or accounting officer of the Company, (i) dated the first time of purchase occurring hereunder, to the effect that the signers of such officers certificate have carefully reviewed examined the Registration Statement, the Time of Sale Final Prospectus and the Prospectus and, this Agreement and that to the best knowledge of such officers, the representations set forth in Sections 1(a)-(dtheir knowledge:
(i) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to the effectiveness of the Registration Statement has been issued under the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) of the Securities Act and (iv) that the representations and warranties of the Company contained in this Agreement are true, true and correct in all material respects on and complete as of the Closing Date first time of purchase occurring hereunder with the same effect as if made on such date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officers signing first time of purchase occurring hereunder;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and delivering such certificate may rely upon no proceedings for that purpose have been instituted or threatened; and
(iii) since the best date of his the most recent financial statements included or her knowledge incorporated by reference in the Final Prospectus, there has been no material 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 to proceedings threatenedset forth in or contemplated in the Final Prospectus.
(cf) The Underwriter At the first time of purchase occurring hereunder, Ernst & Young LLP shall have received on the Closing Date, an opinion of Xxxxxxx LLP, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B.
(d) The Underwriter shall have received on the Closing Date, an opinion and letter of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, outside counsel furnished to the Company, dated the Closing Date in the form attached hereto as Exhibit C.
Underwriter a letter or letters (e) The Underwriter shall have received on the Closing Date, an opinion and letter of O’Melveny & Xxxxx LLP, counsel for which may refer to letters previously delivered to the Underwriter, either as a representative of other underwriters or as an underwriter represented by another representative), dated as of the Closing Date, in form and substance satisfactory to the Underwriter.
(g) Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) The Underwriter shall have receivedof this Section 6 or (ii) any change, on each or any development involving a prospective change, in or affecting the earnings, business or properties of the date hereof Company and its subsidiaries the Closing Dateeffect of which, a letter dated in any case referred to in clause (i) or (ii) above, is, in the date hereof, and the Closing Date in form and substance reasonably satisfactory to reasonable judgment of the Underwriter, from Ernst & Young LLP, independent public accountants, containing statements so material and information adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated Shares as contemplated by reference in the Registration Statement, the Time of Sale Prospectus Statement and the Prospectus provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The Lock-up Agreements between the Underwriter and the parties set forth on Schedule IV relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to the Underwriter on or before the date hereof, shall be in full force and effect on the Closing DateFinal Prospectus.
(h) On or before Prior to the Closing Datefirst time of purchase occurring hereunder, the Underwriter and counsel for Company shall have furnished to the Underwriter shall have received such further information, certificates and documents and opinions as they the Underwriter may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of any of the conditions or agreements herein containedrequest.
(i) The Shares [Intentionally Omitted] If any of the conditions specified in this Section 6 shall not have been approved for listing on fulfilled in all material respects when and as provided in this Agreement, or if any of the NYSEopinions 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 its counsel, subject 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 official notice of issuancethe Company in writing or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Aphton Corp)