Conditions to the Obligations of the Underwriters and the Forward Sellers. The obligations of the Underwriters and the Forward Sellers shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company 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) No stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, shall have been issued by the Commission and no proceedings for that purpose or pursuant to Rule 8A of the Securities Act shall have been instituted or threatened. The Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (b) The Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters, the Forward Purhasers and the Forward Sellers their opinion to the effect set forth in Exhibit A attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (c) The Company shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (d) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Sidley Austin llp, counsel for the Underwriters the Forward Purchasers and the Forward Sellers, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward Purchasers and the Forward Sellers 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 Underwriters, the Forward Purchases and the Forward Sellers a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. (f) At the time of the execution of this Agreement, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package. (g) At the Closing Date, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(f) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date. (h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, the Forward Purchasers and the Forward Sellers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package. (i) Prior to the Closing Date, the Company shall have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers such further information, certificates and documents as the Underwriters, the Forward Purchasers and the Forward Sellers may reasonably request. (j) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers and the Forward Sellers. 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 the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters, the Forward Purchasers and the Forward Sellers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters, the Forward Purchasers and the Forward Sellers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Sidley Austin llp, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (UDR, Inc.)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The several obligations of the Underwriters and the Forward Sellers ~~shall be~~ are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company 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) ~~No stop order suspending~~ Subsequent to the ~~effectiveness~~ execution and delivery of this Agreement and the Forward Sale Agreements and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any public notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the ~~Registration Statement~~possible change, in the rating accorded any of the securities of the Company or any of the subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) there shall not have occurred any change, or ~~notice objecting to its use~~any development involving a prospective change, ~~shall have been issued by~~ in the ~~Commission and no proceedings for that purpose~~ condition, financial or ~~pursuant to Rule 8A~~ otherwise, or in the earnings, business or operations of the ~~Securities Act shall have been instituted or threatened. The~~ Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus ~~containing~~ that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the ~~Rule 430B Information shall have been filed with~~ Shares on the ~~Commission~~ terms and in the manner ~~and within~~ contemplated in the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements Time of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)Sale Prospectus. (b) The ~~Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the~~ Underwriters, the Forward ~~Purhasers~~ Sellers and the Forward ~~Sellers their opinion~~ Purchasers shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company and XXXX XxxxXx, as the sole managing member of the Operating Company, to the effect set forth in ~~Exhibit A attached hereto~~Section 6(a)(i) above and to the effect that the representations and warranties of the Company and the Operating Company contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Operating Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate on behalf of the Company and XXXX XxxxXx, as the sole managing member of the Operating Company, may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Underwriters, the Forward Sellers and the Forward Purchasers shall have received on the Closing Date an opinion (including a negative assurance letter) of Xxxxx Xxxxxxx US LLP, outside counsel for the Company and the Operating Company, dated the Closing ~~Date and addressed~~ Date, with respect to the matters identified in Exhibits A-1 and A-2 hereto. In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and XXXX XxxxXx, as the sole managing member of the Operating Company, and certificates of public officials. (d) The Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~Purchasers shall have received on the Closing Date an opinion (including a negative assurance letter) of Xxxxxx Xxxxxx LLP, in form and substance reasonably satisfactory to the Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~Purchasers. In ~~rendering~~ giving such ~~opinion~~opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Hogan Lovells US LLP referred to in Section 6(c) hereof. In giving such opinions, such counsel may ~~rely~~ rely, as to matters of fact, to the extent ~~they deem~~ it deems proper, on certificates of ~~responsible~~ officers of the Company and XXXX XxxxXx, as the sole managing member of the Operating Company, and certificates of public officials. (ce) The Company shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (d) The Underwriters, the Forward Purchasers Underwriters and the Forward Sellers shall have ~~received from Sidley Austin llp~~received, counsel for the Underwriters the Forward Purchasers and the Forward Sellers, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward Purchasers and the Forward Sellers 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 Underwriters, the Forward Purchases and the Forward Sellers a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct as on each of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date~~; (ii) no stop order suspending the effectiveness of the Registration Statement~~, ~~or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since~~ letters dated the date ~~of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus~~ hereof or the ~~Disclosure Package (exclusive of any amendment or supplement thereto)~~Closing Date, ~~there has been no material adverse change in~~ as the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. (f) At the time of the execution of this Agreement, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated such datecase may be, in form and substance satisfactory to the ~~Underwriters~~Underwriters and the Forward Sellers, from Deloitte & Touche LLP, an independent registered public accounting firm for the Company and MGP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to (i) the financial statements and certain financial information of the Company and (ii) the financial statements and certain financial information of MGP, in each case contained ~~or incorporated by reference or deemed to be incorporated by reference~~ in the Registration Statement, the Time of Sale Prospectus or and the ~~Disclosure Package~~Prospectus; provided that the letters delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (gf) ~~At the Closing Date~~The “lock-up” agreements, ~~the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made~~ substantially in the ~~letter furnished pursuant~~ form of Exhibit B hereto signed by the persons listed on Schedule III hereto, relating to ~~Section 7(f)~~ sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, ~~except that the specified date referred therein to~~ shall be ~~a date not more than three New York business days prior to~~ in full force and effect on the Closing Date. (g) FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares. (h) ~~Subsequent~~ On the Closing Date, any Company Top-Up Shares and the shares of Common Stock issuable by the Company pursuant to the ~~date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there~~ Forward Sale Agreements shall ~~not~~ have been ~~(i) any change or decrease specified in~~ approved for listing on the ~~letter or letters referred~~ NYSE, subject only to ~~in paragraph (g)~~ official notice of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, the Forward Purchasers and the Forward Sellers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Packageissuance. (i) ~~Prior~~ The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following: (i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company and XXXX XxxxXx, as the sole managing member of the Operating Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date; (ii) an opinion (including a negative assurance letter) of Hogan Lovells US LLP, outside counsel for the Company and the Operating Company, dated the Option Closing Date, ~~the Company shall have furnished~~ relating to the ~~Underwriters,~~ Additional Shares to be purchased on such Option Closing Date and otherwise to the ~~Forward Purchasers and the Forward Sellers such further information, certificates and documents~~ same effect as the ~~Underwriters, the Forward Purchasers and the Forward Sellers may reasonably request.~~opinion required by Section 6(c) hereof; (jiii) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” an opinion (~~as defined by the Commission in Section 3(a)(62~~including a negative assurance letter) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers and the Forward Sellers. 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 the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters, the Forward Purchasers and the Forward Sellers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters, the Forward Purchasers and the Forward Sellers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Sidley Austin ~~llp~~LLP, counsel for the Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward Purchasers, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters and the Forward Sellers, ~~at 000 Xxxxxxx Xxxxxx~~from Deloitte & Touche LLP, ~~Xxx Xxxx~~independent public accountants for the Company and MGP, ~~Xxx Xxxx 00000,~~ substantially in the same form and substance as the letter furnished to the Underwriters and the Forward Sellers pursuant to Section 6(e) hereof; provided that the letters delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; (v) such other documents as you may reasonably request with respect to the good standing of the Company and the Operating Company, the due authorization and issuance of the Additional Company Top-Up Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Company Top-Up Shares.

Appears in 1 contract

Samples: Underwriting Agreement (VICI Properties L.P.)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The obligations of the Underwriters to purchase the Shares at each Closing Date, and the obligation of the Forward Sellers to deliver and sell the Borrowed Firm Shares on the First Closing Date or the Borrowed Option Shares on an Option Closing Date, as the case may be, to the Underwriters, as provided herein, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, such Closing Date and any settlement date ~~hereof and the Closing Date~~pursuant to Section 3 hereof, to the accuracy of the statements of the Company 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) ~~No stop order suspending the effectiveness of the Registration Statement~~The Prospectus, ~~or notice objecting to its use~~and any supplement thereto, shall have been issued by the Commission and no proceedings for that purpose or pursuant to Rule 8A of the Securities Act shall have been instituted or threatened. The Prospectus containing the Rule 430B Information shall have been filed ~~with the Commission~~ in the manner and within the time period required by Rule 424(b~~) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B~~)~~. All materials~~ ; any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods ~~presented~~ prescribed for such filings ~~under~~ by Rule 433~~. The Company shall have paid~~ ; and no stop order suspending the ~~required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i)~~ effectiveness of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or, to the ~~cover page~~ knowledge of ~~a prospectus filed pursuant to Rule 424(b)~~the Company, threatened. (b) The Company shall have requested and caused (i) Xxxxxxx X. Xxxxxxx, Associate General Counsel of the Company and (ii) Xxxxxxxx ~~& Xxxxxxxx~~ Xxxxxxx LLP, counsel for the Company, to have furnished to the ~~Underwriters~~Representatives, the Forward ~~Purhasers~~ Sellers and the Forward ~~Sellers~~ Purchasers their ~~opinion to the effect set forth in Exhibit A attached hereto~~respective opinions, dated ~~the~~ such Closing Date and addressed to the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~Purchasers, substantially in ~~form and substance reasonably satisfactory to~~ the ~~Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely~~ forms attached as ~~to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials~~Exhibit C hereto. (c) The ~~Company~~ Representatives, the Forward Sellers and the Forward Purchasers shall have ~~requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx~~ received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, ~~with respect to the opinion set forth in paragraph 2 of Exhibit B,~~ counsel for ~~the Company, to have furnished to~~ the Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers their~~ Purchasers such opinion ~~as to tax issues, to the effect set forth in Exhibit B attached hereto~~or opinions, dated ~~the~~ such Closing Date and addressed to the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward~~ Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (d) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Sidley Austin llp, counsel for the Underwriters the Forward Purchasers and the Forward Sellers, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to ~~this Agreement~~the issuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus ~~and the Disclosure Package~~ (together with any supplement thereto) and other related matters as the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~ Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (ed) The Company shall have furnished to the ~~Underwriters~~Representatives, the Forward ~~Purchases~~ Sellers and the Forward ~~Sellers~~ Purchasers a certificate of the Company, signed by ~~the Chairman of the Board of Directors, the President, any Senior~~ its Executive Vice President, Chief Financial Officer and any ~~Senior~~ Vice ~~President or the principal financial or accounting officer of the Company~~President, dated ~~the~~ such Closing Date, ~~to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and~~ stating that: (i) ~~the representations~~ The representations, warranties and ~~warranties~~ agreements of the Company in ~~this Agreement~~ Section 1 are true and correct ~~as of the date hereof and~~ on and as of ~~the~~ such Closing ~~Date with the same effect as if made on the Closing Date~~ Date, and the Company has complied with all ~~the~~ its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to ~~the~~ such Closing Date; (ii) no No stop order suspending the effectiveness of the Registration ~~Statement, or notice objecting to its use,~~ Statement has been ~~issued and~~ issued; no proceedings or examination for that purpose have been instituted or, to the ~~Company’s knowledge~~knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and (iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on such Closing Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth. (e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, the Forward Sellers and the Forward Purchasers at the Applicable Time and at such Closing Date, letters (which may refer to letters previously delivered to the Representatives, the Forward Sellers and the Forward Purchasers), dated respectively as of the Applicable Time and as of such Closing Date, in form and substance satisfactory to the Representatives, the Forward Sellers and the Forward Purchasers confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (f) Except as described in the Pricing Disclosure Package and the Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the ~~most recent~~ latest audited financial statements included or incorporated by reference in the ~~Registration Statement, the Prospectus or the~~ Pricing Disclosure Package ~~(exclusive of~~ and the Prospectus, any ~~amendment~~ loss or ~~supplement thereto)~~interference with its business from fire, ~~there has been no material adverse change in the condition (financial~~ explosion, flood or ~~otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole~~other calamity, whether or not ~~arising~~ covered by insurance, or from ~~transactions in~~ any labor dispute or court or governmental action, order or decree or (ii) since the ~~ordinary course of business. (f) At the time~~ date of the execution of this Agreement, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package. (g) At the Closing Date, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(f) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date. (h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Pricing Disclosure Package, there shall not have been ~~(i)~~ any change ~~or decrease specified~~ in the ~~letter~~ capital stock, long-term debt, consolidated net current assets or ~~letters referred to in paragraph (g)~~ stockholders’ equity of ~~this Section 7~~ the Company and/or any of its subsidiaries or ~~(ii)~~ any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), ~~earnings~~results of operations, stockholders’ equity, properties, management or business ~~or properties~~ of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole~~, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package~~, the effect of which, in any such case ~~referred to~~ described in clause (i) or (ii~~) above~~), is, in the ~~sole~~ judgment of the ~~Underwriters, the Forward Purchasers and the Forward Sellers~~Representatives, so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Securities as~~ Shares being delivered on the Closing Date on the terms and in the manner contemplated by in the ~~Registration Statement, the Prospectus and the Disclosure Package~~Prospectus. (i) Prior to the Closing Date, the Company shall have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers such further information, certificates and documents as the Underwriters, the Forward Purchasers and the Forward Sellers may reasonably request. (jg) Subsequent to the ~~date hereof~~Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities ~~or preferred stock~~ by any “nationally recognized statistical rating organization” (as defined ~~by the Commission in Section~~ for purposes of Rule 3(a)(62) of under the ~~0000 Xxx~~Exchange Act) ~~or any notice given of any intended or potential decrease in any~~ and no such ~~rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor~~ organization shall ~~any such rating organization~~ have publicly announced that it has ~~placed~~ under surveillance or review, with possible negative implications, its rating of any of the Company’s debt ~~securities or preferred stock on what is commonly termed a “watch list” for possible downgrading~~securities. (kh) ~~The Securities~~ Any Company Shares to be delivered at such Closing Date and the Issuable Shares shall have been ~~listed and admitted and authorized~~ approved for ~~trading~~ listing on the ~~NYSE~~New York Stock Exchange, ~~and satisfactory evidence~~ subject only to official notice of ~~such actions~~ issuance. (i) At the Applicable Time, the Company shall have ~~been provided~~ furnished to the ~~Underwriters,~~ Representatives a letter substantially in the form of Exhibit A hereto from each named executive officer and director of the Company and addressed to the Representatives. (j) The Forward ~~Purchasers~~ Sale Agreements shall be in full force and effect at the First Closing Date and any Additional Forward ~~Sellers~~Sale Agreements shall be in full force and effect at the related Option Closing Date. If any of the conditions specified in this Section 7 6 shall not have been fulfilled ~~in all material respects~~ when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be ~~in all material respects~~ reasonably satisfactory in form and substance to the ~~Underwriters~~Representatives, ~~the Forward Purchasers and~~ the Forward Sellers and the Forward Purchasers or their respective counsel, this Agreement and all obligations of the Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~ Purchasers hereunder may be ~~cancelled~~ canceled at, or at any time prior to, the First Closing Date, or with respect to any Option Shares the related Option Closing Date by the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~Purchasers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Sidley Austin llp, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (PNM Resources Inc)

Appears in 1 contract

Samples: Underwriting Agreement (UDR, Inc.)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The several obligations of each Underwriter to purchase the ~~Underwriters~~ Firm Shares or the Additional Shares, and the obligations of each Forward ~~Sellers shall be subject~~ Seller to deliver and sell the Firm Shares or the Additional Shares to the ~~accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date~~Underwriters, ~~to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof,~~ are subject to the performance by the Company of its covenants and obligations hereunder and to the following ~~additional~~ conditions: (a) No stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, shall have been issued by the Commission and no proceedings for that purpose or pursuant to Rule 8A of the Securities Act shall have been instituted or threatened. The Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating Subsequent to the ~~Securities within the time period required by Rule 456(b)(1)(i)~~ execution and delivery of ~~the 1933 Act Regulations without regard~~ this Agreement and prior to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (b) The Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters, the Forward Purhasers and the Forward Sellers their opinion to the effect set forth in Exhibit A attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (c) The Company shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (d) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Sidley Austin llp, counsel for the Underwriters the Forward Purchasers and the Forward Sellers, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward Purchasers and the Forward Sellers 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 Underwriters, the Forward Purchases and the Forward Sellers a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date~~, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that~~: (i) 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 ~~representations and warranties~~ direction of the possible change, in the rating accorded any of the securities of the Company ~~in this Agreement are true and correct~~ 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 date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateSecurities Act; (ii) ~~no stop order suspending the effectiveness of the Registration Statement~~there shall not have occurred any change, or ~~notice objecting to its use~~any development involving a prospective change, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Registration Statement~~condition, ~~the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (~~financial or otherwise), ~~prospects,~~ or in the earnings, ~~business~~ business, management or ~~properties~~ operations of the Company and its subsidiaries, taken as a whole, ~~whether or not arising~~ from ~~transactions~~ that set forth in the ~~ordinary course~~ Time of ~~business~~Sale Prospectus as of the date of this Agreement that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Shares on the terms and in the manner contemplated by this Agreement, the Time of Sale Prospectus and the Prospectus; and (iii) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or, to the Company’s knowledge, threatened by the Commission; the Prospectus and each free writing prospectus shall have been timely filed with the Commission under the Securities Act (in the case of a free writing prospectus, to the extent required by Rule 433 under the Securities Act); and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives, the Forward Sellers and the Forward Counterparties. (b) The representations and warranties of the Company contained herein shall be true and correct at the time when sales of the Shares were first made and on and as of the Closing Date or the Option Closing Date, as the case may be; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall have been complied with to the reasonable satisfaction of the Representatives, the Forward Sellers and the Forward Counterparties. (c) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate, dated the Closing Date or the Option Closing Date, as the case may be, and signed by an executive officer of the Company, (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and, to the best knowledge of such officer, the representations set forth in Sections 1(b) and 1(c) and are true and correct, (ii) confirming that the representations and warranties of the Company contained in this Agreement are true and correct 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 and (iii) to the effect set forth in Sections 6(a) and 6(b) above. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (d) (i) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date or the Option Closing Date, as the case may be, the written opinion and Section 11/12 Statement of Xxxxxx & Xxxxxxx LLP, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, the Forward Sellers and the Forward Counterparties, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, to the effect set forth in Annex A-1 hereto; (ii) the general counsel for the Company shall have furnished to the Representatives, the Forward Sellers and the Forward Counterparties, at the request of the Company, his written opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, the Forward Sellers and the Forward Counterparties, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, to the effect set forth in Annex A-2 hereto; and (iii) the in-house intellectual property counsel for the Company shall have furnished to the Representatives, the Forward Sellers and the Forward Counterparties, at the request of the Company, his written opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriters, the Forward Sellers and the Forward Counterparties, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, to the effect set forth in Annex A-3 hereto; (e) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date shall have received on and as of the Closing Date or the Option Closing Date, as the case may be, the written opinion and Section 11/12 Statement of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, with respect to such matters as the Representatives, the Forward Sellers and the Forward Counterparties may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. The opinion of counsel for the Company described in Section 6(d) above shall be rendered to the Representatives, the Forward Sellers and the Forward Counterparties at the request of the Company and shall be stated therein. (f) ~~At the time of the execution of this Agreement, the Underwriters~~The Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~ Counterparties shall have ~~received from Ernst & Young LLP~~ received, on each of the date hereof and the Closing Date or the Option Closing Date, as the case may be, a ~~letter~~letter dated the date hereof or the Closing Date or the Option Closing Date, ~~dated such date~~as the case may be, in form and substance reasonably satisfactory to the ~~Underwriters~~Representatives, the Forward Sellers and the Forward Counterparties, from KPMG 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 ~~or incorporated by reference or deemed to be incorporated by reference~~ in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date or the ~~Disclosure Package. (g) At the~~ Option Closing ~~Date, the Underwriters, the Forward Purchasers and the Forward Sellers~~ Date shall ~~have received from Ernst & Young LLP~~ use a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(f) hereof, except that the specified date referred therein to shall be a date not “cut-off date” no more than three ~~New York~~ business days prior to the Closing Date or the Option Closing Date, as the case may be, and (i) on the date of this Agreement, KPMG AZSA & Co. shall have furnished to the Representatives, the Forward Sellers, and the Forward Counterparties, at the request of the Company and Olympus Corporation, a letter pursuant to AT Section 201, Agreed-Upon Procedures Engagements, naming the Representatives, the Forward Sellers and the Forward Counterparties as “specified parties” within the meaning of such attestation standard, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex A-4 hereto. (g) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and certain officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date or the Option Closing Date, as the case may be. (h) ~~Subsequent~~ The Shares reserved for listing upon issuance following Physical Settlement or Net Share Settlement (as such terms are defined in each Forward Agreement and any Additional Forward Agreement) of each Forward Agreement and any Additional Forward Agreement and the Shares (if any) to be sold by the ~~date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus~~ Company pursuant to Section 3(a)(ii)(B) or ~~the Disclosure Package, there shall not~~ Section 12 hereto have been approved for listing on the New York Stock Exchange (~~i) any change or decrease specified in~~ the ~~letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise~~“NYSE”), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, the Forward Purchasers and the Forward Sellers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package. (i) ~~Prior~~ No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Shares. (j) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on and as of the Closing Date or as of the Option Date, as the case may be, satisfactory evidence of the good standing of the Company and the subsidiary listed on Schedule III hereto in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions. (k) On or prior to the Closing Date or the Option Closing Date, as the case may be, the Company shall have furnished to the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~ Counterparties such further ~~information,~~ certificates and documents as the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~ Counterparties may reasonably request~~. (j) Subsequent to the date hereof~~. All opinions, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities shall have been listed letters, certificates and ~~admitted and authorized for trading on the NYSE, and satisfactory~~ evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers and the Forward Sellers. 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 deemed to be in ~~all material respects reasonably satisfactory~~ compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters, the Forward Purchasers and the Forward Sellers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters, the Forward Purchasers and the Forward Sellers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Sidley Austin llp, counsel for the Underwriters. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as the Representatives may reasonably request with respect to the good standing of the Company, the ~~Forward Purchasers~~ due authorization and issuance of the ~~Forward Sellers, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,~~ Additional Shares to be sold on such Option Closing Date and other matters related to the ~~Closing Date~~issuance of such Additional Shares.

Appears in 1 contract

Samples: Underwriting Agreement (Beckman Coulter Inc)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The several obligations of the Underwriters and the Forward Sellers ~~shall be~~ are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company 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) ~~No stop order suspending~~ Subsequent to the ~~effectiveness~~ execution and delivery of this Agreement and the Forward Sale Agreements and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any public notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the ~~Registration Statement~~possible change, in the rating accorded any of the securities of the Company or any of the subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) there shall not have occurred any change, or ~~notice objecting to its use~~any development involving a prospective change, ~~shall have been issued by~~ in the ~~Commission and no proceedings for that purpose~~ condition, financial or ~~pursuant to Rule 8A~~ otherwise, or in the earnings, business or operations of the ~~Securities Act shall have been instituted or threatened. The~~ Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus ~~containing~~ that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the ~~Rule 430B Information shall have been filed with~~ Shares on the ~~Commission~~ terms and in the manner ~~and within~~ contemplated in the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements Time of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)Sale Prospectus. (b) The ~~Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the~~ Underwriters, the Forward ~~Purhasers~~ Sellers and the Forward ~~Sellers their opinion~~ Purchasers shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company and the General Partner of the Operating Partnership, to the effect set forth in ~~Exhibit A attached hereto~~Section 6(a) above and to the effect that the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Operating Partnership has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate on behalf of the Company and the General Partner of the Operating Partnership may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Underwriters, the Forward Sellers and the Forward Purchasers shall have received on the Closing Date an opinion (including a negative assurance letter) of Xxxxx Lovells US LLP, outside counsel for the Company and the Operating Partnership, dated the Closing ~~Date and addressed~~ Date, with respect to the matters identified in Exhibits A-1 and A-2 hereto. In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and the General Partner of the Operating Partnership and certificates of public officials. (d) The Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~Purchasers shall have received on the Closing Date an opinion (including a negative assurance letter) of Sidley Austin llp, in form and substance reasonably satisfactory to the Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~Purchasers. In ~~rendering~~ giving such ~~opinion~~opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxx Lovells US LLP referred to in Section 6(c) hereof. In giving such opinions, such counsel may ~~rely~~ rely, as to matters of fact, to the extent ~~they deem~~ it deems proper, on certificates of ~~responsible~~ officers of the Company and the General Partner of the Operating Partnership and certificates of public officials. (c) The Company shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (de) The Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~ Purchasers shall have ~~received from Sidley Austin llp~~received, counsel for the Underwriters the Forward Purchasers and the Forward Sellers, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward Purchasers and the Forward Sellers 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 Underwriters, the Forward Purchases and the Forward Sellers a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct as on each of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date~~; (ii) no stop order suspending the effectiveness of the Registration Statement~~, ~~or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since~~ a letter dated the date ~~of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus~~ hereof or the ~~Disclosure Package (exclusive of any amendment or supplement thereto)~~Closing Date, ~~there has been no material adverse change in~~ as the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. (f) At the time of the execution of this Agreement, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated such datecase may be, in form and substance satisfactory to the Underwriters, the Forward Sellers and the Forward Purchasers, from Deloitte & Touche LLP, an independent registered public accounting firm, 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 ~~or incorporated by reference or deemed to be incorporated by reference~~ in the Registration Statement, the Time of Sale Prospectus or and the ~~Disclosure Package~~Prospectus; provided that the letter delivered on the Closing Date shall use a “cutoff date” not earlier than the date hereof. (gf) At The Underwriters, the Forward Sellers and the Forward Purchasers shall have received, on each of the date hereof and the Closing Date, a certificate signed by the chief financial officer of the Company, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers shall have received from Ernst & Young LLP a letter~~Purchasers, ~~dated the Closing Date,~~ with respect to ~~the effect that they reaffirm the statements made~~ certain financial data contained in the ~~letter furnished pursuant~~ Registration Statement, the Time of Sale Prospectus and the Prospectus, and any amendment or supplement thereto, providing “management comfort.” (g) The “lock-up” agreements, substantially in the form of Exhibit B hereto signed by the persons listed on Schedule III hereto, relating to ~~Section 7(f)~~ sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, ~~except that the specified date referred therein to~~ shall be ~~a date not more than three New York business days prior to~~ in full force and effect on the Closing Date. (h) ~~Subsequent~~ FINRA has confirmed that it has not raised any objection with respect to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties fairness and reasonableness of the ~~Company~~ underwriting terms and ~~its subsidiaries, taken as a whole, whether or not arising from transactions in~~ arrangements relating to the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment offering of the Underwriters, the Forward Purchasers and the Forward Sellers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure PackageShares. (i) ~~Prior to~~ On the Closing Date, any Company Top-Up Shares and the shares of Common Stock issuable by the Company pursuant to the Forward Sale Agreements shall have ~~furnished~~ been approved for listing on the NYSE, subject only to the Underwriters, the Forward Purchasers and the Forward Sellers such further information, certificates and documents as the Underwriters, the Forward Purchasers and the Forward Sellers may reasonably requestofficial notice of issuance. (j) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers and the Forward Sellers. 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 the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all several obligations of the ~~Underwriters~~Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following: (i) a certificate, dated the ~~Forward Purchasers~~ Option Closing Date and signed by an executive officer of the Company and the ~~Forward Sellers hereunder may be cancelled at~~General Partner of the Operating Partnership, ~~or at any time prior to,~~ confirming that the certificate delivered on the Closing Date by pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date; (ii) an opinion (including a negative assurance letter) of Xxxxx Lovells US LLP, outside counsel for the ~~Underwriters, the Forward Purchasers~~ Company and the ~~Forward Sellers. Notice of such cancellation shall be given~~ Operating Partnership, dated the Option Closing Date, relating to the ~~Company in writing or by telephone or facsimile confirmed in writing. The documents required~~ Additional Shares to be ~~delivered~~ purchased on such Option Closing Date and otherwise to the same effect as the opinion required by ~~this~~ Section ~~7 shall be delivered at the office~~ 6(c) hereof; (iii) an opinion (including a negative assurance letter) of Sidley Austin ~~llp~~LLP, counsel for the Underwriters, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~Purchasers, ~~at 000 Xxxxxxx Xxxxxx~~dated the Option Closing Date, ~~Xxx Xxxx~~relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof; (iv) a letter dated the Option Closing Date, ~~Xxx Xxxx 00000~~in form and substance satisfactory to the Underwriters, the Forward Sellers and the Forward Purchasers, from Deloitte & Touche LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters, the Forward Sellers and the Forward Purchasers pursuant to Section 6(e) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; (v) a certificate dated the Option Closing Date, in form and substance satisfactory to the Underwriters, signed by the chief financial officer of the Company, substantially in the same form and substance as the letter furnished to the Underwriters, the Forward Sellers and the Forward Purchasers pursuant to Section 6(f) hereof; and (vi) such other documents as you may reasonably request with respect to the good standing of the Company and the Operating Partnership, the due authorization and issuance of the Company Top-Up Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Company Top-Up Additional Shares.

Appears in 1 contract

Samples: Underwriting Agreement (Vici Properties Inc.)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The obligations of the several Underwriters and the several Forward Sellers ~~shall be~~ are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company 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) No The representations and warranties of the Company and the Operating Partnership contained herein shall be true and correct on the date hereof and on and as of the Closing Date. (b) The Registration Statement has become effective and, at the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement,~~ Statement or ~~notice objecting to its use, shall have~~ any post-effective amendment thereto has been issued by under the ~~Commission~~ Securities Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for ~~that purpose~~ any of those purposes or pursuant to ~~Rule~~ Section 8A of the Securities Act ~~shall~~ have been instituted or ~~threatened. The Prospectus containing~~ are pending or, to the ~~Rule 430B Information shall have been filed~~ Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for ~~such filings under Rule 433~~additional information. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of under the ~~1933~~ Securities Act ~~Regulations~~ without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of under the ~~1933~~ Securities Act ~~Regulations~~ and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (bc) Subsequent to the execution and delivery of this Agreement and the Forward Sale Agreements 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 the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and the Subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Time of Sale Prospectus and the Prospectus that, in the Underwriters’ judgment, is material and adverse and that makes it, in the Underwriters’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus. (d) The ~~Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the~~ Underwriters, the Forward ~~Purhasers~~ Purchasers and the Forward Sellers ~~their opinion~~ shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company and the Operating Partnership, to the effect set forth in ~~Exhibit A attached hereto~~Section 6(c)(i) and to the effect that: (i) the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of the date hereof and as of the Closing Date and that; (ii) each of the Company and the Operating Partnership has complied with all of its agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or, to the knowledge of the Company or the Operating Partnership, threatened by the Commission; (iv) the preliminary prospectus, the Prospectus and any Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of the Time of Sale, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date, and as of the Time of Sale, the Time of Sale Prospectus did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that such certificate shall not apply to any statements or omissions relating to any Underwriter made in reliance upon and in conformity with Counterparty Information furnished in writing to the Company by such Underwriter through you expressly for use in the Time of Sale Prospectus. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (e) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, with respect to the matters identified in Exhibits A-1 and A-2 hereto. In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and certificates of public officials. (f) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received on the Closing Date, an opinion of Xxxxxxx Xxxxx LLP, Maryland counsel to the Company, dated the Closing Date, with respect to the matters identified in Exhibit B hereto. (g) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received on the Closing Date an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel to the Operating Partnership, dated the Closing Date, with respect to the matters identified in Exhibit C hereto. (h) The Underwriters, the Forward Purchasers and ~~addressed to~~ the Forward Sellers shall have received on the Closing Date an opinion and negative assurance letter of Sidley Austin LLP, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In ~~rendering~~ giving such ~~opinion~~opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxxxx Xxxxx LLP referred to in Section 6(f) and, as to all matters governed by Delaware law, upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. referred to in Section 6(g). In giving such opinions, such counsel may ~~rely~~ rely, as to matters of fact, to the extent ~~they deem~~ it deems proper, on certificates of ~~responsible~~ officers of the Company and certificates of public officials. (ci) The ~~Company~~ Underwriters shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem properreceived, on certificates of responsible officers of the Company and public officials. (d) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Sidley Austin llp, counsel for the Underwriters the Forward Purchasers and the Forward Sellers, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward Purchasers and the Forward Sellers 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 Underwriters, the Forward Purchases and the Forward Sellers a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct as each of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date~~; (ii) no stop order suspending the effectiveness of the Registration Statement~~, ~~or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since~~ a letter dated the date ~~of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus~~ hereof or the ~~Disclosure Package (exclusive of any amendment or supplement thereto)~~Closing Date, ~~there has been no material adverse change in~~ as the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. (f) At the time of the execution of this Agreement, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated such datecase may be, in form and substance satisfactory to the Underwriters, 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 ~~or deemed to be incorporated by reference in~~ into the Registration Statement, the Time of Sale Prospectus or and the ~~Disclosure Package~~Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (gj) At The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and the parties identified on Exhibit E hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date~~, the~~ . (k) The Underwriters, the Forward Purchasers and the Forward Sellers shall have ~~received from Ernst & Young LLP a letter~~received, ~~dated~~ on each of the date hereof and the Closing Date, to a certificate of the ~~effect that they reaffirm~~ chief financial officer of the ~~statements made in the letter furnished pursuant to Section 7(f) hereof~~Company, ~~except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date. (h) Subsequent to~~ dated the date hereof ~~or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus~~ or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, the Forward Purchasers and the Forward Sellers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package. (i) Prior to the Closing Date, substantially in the ~~Company~~ form of Exhibit F hereto. (l) All filings with the Commission required by Rule 424 under the Securities Act shall have ~~furnished~~ been filed within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)). (m) The Shares and any shares deliverable pursuant to the ~~Underwriters~~Forward Sale Agreements shall have been approved for listing on the NYSE, subject only to a notice of issuance. (n) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule. (o) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives, the Forward Purchasers and the Forward Sellers ~~such further information, certificates~~ on the applicable Option Closing Date of the following: (i) the representations and ~~documents as~~ warranties of the ~~Underwriters, the Forward Purchasers~~ Company and the ~~Forward Sellers may reasonably request.~~Operating Partnership contained herein shall be true and correct on the date hereof and on and as of such Option Closing Date; (jii) ~~Subsequent to~~ a certificate, dated the ~~date hereof, there shall not have been any decrease in the rating of any~~ Option Closing Date and signed by an executive officer of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers Company and the ~~Forward Sellers. If any of~~ Operating Partnership, confirming that 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 the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters, the Forward Purchasers and the Forward Sellers hereunder may be cancelled at, or at any time prior to, certificate delivered on the Closing Date ~~by the Underwriters, the Forward Purchasers~~ pursuant to Section 6(d) remains true and ~~the Forward Sellers. Notice~~ correct as of such ~~cancellation shall be given~~ Option Closing Date; (iii) an opinion of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the ~~Company in writing or by telephone or facsimile confirmed in writing. The documents required~~ Additional Shares to be ~~delivered~~ purchased on such Option Closing Date and otherwise to the same effect as the opinion required by ~~this~~ Section ~~7 shall~~ 6(e); (iv) an opinion of Xxxxxxx Xxxxx LLP, Maryland counsel to the Company, dated the Option Closing Date, relating to the Additional Shares to be ~~delivered at~~ purchased on such Option Closing Date and otherwise to the ~~office~~ same effect as the opinion required by Section 6(f); (v) an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel to the Operating Partnership, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(g); (vi) an opinion of Sidley Austin ~~llp~~LLP, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, ~~at 000 Xxxxxxx Xxxxxx~~dated the Option Closing Date, ~~Xxx Xxxx~~relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(h); (vii) a letter dated the Option Closing Date, ~~Xxx Xxxx 00000~~in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(i); provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; (viii) a certificate, dated the Option Closing Date and signed by the chief financial officer of the Company, to the same effect as the certificate required by Section 6(k); and (ix) such other documents as you may reasonably request with respect to the good standing of the Company and the Operating Partnership, the due authorization and issuance of the Company Top-Up Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Company Top-Up Additional Shares.

Appears in 1 contract

Samples: Underwriting Agreement (Spirit Realty Capital, Inc.)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The several obligations of the Underwriters to purchase the Shares at each Closing Date, and the obligations of each Forward ~~Sellers~~ Seller to deliver and sell its Borrowed Firm Shares on the First Closing Date or its Borrowed Option Shares on an Option Closing Date, as the case may be, to the Underwriters, as provided herein, shall be ~~subject~~ subject, in the discretion of the Representatives or each of the Forward Sellers, as the case may be, to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and ~~the~~ as of such Closing Date, to the accuracy of the statements of the ~~Company~~ Company’s officers on and as of such Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) No The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; all filings required by Rule 433 under the Act shall have been made, and no such filings shall have been made without the consent of the Representatives and the Forward Sellers; no stop order suspending the effectiveness of the Registration ~~Statement,~~ Statement or ~~notice objecting to its use,~~ any part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued ~~by the Commission~~ and no ~~proceedings~~ proceeding for that purpose or pursuant to ~~Rule~~ Section 8A of the ~~Securities~~ Act shall have been ~~instituted~~ initiated or ~~threatened. The Prospectus containing~~ threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule ~~430B Information~~ 401(g)(2) under the Act has been received by the Company; and all requests for additional information on the part of the Commission shall have been ~~filed~~ complied with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the ~~Securities within~~ Representatives’, the ~~time period required by Rule 456(b)(1)(i) of~~ Forward Sellers’ and the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)Forward Purchasers’ reasonable satisfaction. (b) The Representatives, the Forward Sellers and the Forward Purchasers shall be furnished with opinion letters, dated such Closing Date, of (i) Xxx X. Xxxxxxxxx, Vice President, Corporate Secretary and Securities of the Company ~~shall have requested~~ (or other reasonably acceptable internal counsel of the Company), that address substantially the matters set forth in Exhibit A, and ~~caused Xxxxxxxx & Xxxxxxxx LLP~~(ii) Xxxxx Day, counsel for the Company, ~~to have furnished to~~ that address substantially the ~~Underwriters, the Forward Purhasers and the Forward Sellers their opinion to the effect~~ matters set forth in Exhibit A attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.B. (c) The Company shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the UnderwritersRepresentatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward~~ Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (d) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received from ~~Sidley Austin llp~~Hunton Xxxxxxx Xxxxx LLP, New York, New York, counsel for the Underwriters (“Counsel for the ~~Forward Purchasers and the Forward Sellers~~Underwriters”), such opinion or ~~opinions,~~ opinions and negative assurance letter dated ~~the~~ such Closing Date ~~and addressed~~ with respect to such matters as the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward~~ Purchasers ~~and the Forward Sellers~~ may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (ed) The Company shall have furnished to the ~~Underwriters~~Representatives, the Forward ~~Purchases~~ Sellers and the Forward ~~Sellers~~ Purchasers a certificate of the ~~Company, signed by the Chairman of the Board of Directors, the~~ President, ~~any Senior~~ Executive Vice President, ~~any~~ Senior Vice President or ~~the principal financial or accounting officer~~ any Vice President of the Company, dated ~~the~~ such Closing Date, as to the matters set forth in paragraphs (a) and (i) of this Section 7 and to the further effect that the signers of such certificate have ~~carefully~~ examined the Registration Statement, ~~the Prospectus, any supplements to~~ the Prospectus and this Agreement and that, to the best of his or her knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct ~~as of the date hereof and~~ on and as of ~~the~~ such Closing Date with the same effect as if made on ~~the~~ such Closing ~~Date~~ Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the~~ such Closing Date;; and (ii) there has been no ~~stop order suspending~~ material adverse change in the ~~effectiveness~~ condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth in or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or ~~notice objecting to its use~~the Prospectus. (e) The Representatives, ~~has been issued~~ the Forward Sellers and ~~no proceedings~~ the Forward Purchasers shall have received letters from Deloitte & Touche LLP, independent public accountants for ~~that purpose have been instituted or~~the Company (dated the date of this Agreement and such Closing Date, respectively, and in form and substance satisfactory to the ~~Company’s knowledge~~Representatives, ~~threatened; and~~ the Forward Sellers and the Forward Purchasers) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the stockholders of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on (1) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the ~~Prospectus~~ Pricing Disclosure Package or the Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, incurrences of long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package ~~(exclusive~~ or the Prospectus or, as of ~~any amendment or supplement thereto)~~a specified date, there ~~has been no material adverse change~~ were any decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the ~~condition (~~Pricing Disclosure Package or the Prospectus, or for the period from the date of the most recent financial statements included or ~~otherwise)~~incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any decreases, ~~prospects~~as compared with the corresponding period in the preceding year, ~~earnings~~in operating revenues, ~~business~~ operating income or ~~properties~~ net income of the Company and its subsidiaries, ~~taken~~ except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as ~~a whole, whether or~~ to the significance thereof unless said explanation is not ~~arising~~ deemed necessary by the Representatives; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from ~~transactions in the ordinary course of business. (f) At the time~~ general accounting records of the ~~execution of this Agreement~~Company or, ~~the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory~~ to the ~~Underwriters~~extent not so derived, ~~containing statements and information of the type ordinarily~~ from schedules prepared by Company officers responsible for such accounting records) included ~~in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained~~ or ~~incorporated by reference or deemed to be~~ incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the ~~Disclosure Package~~Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them. (f) The Company shall have furnished to the Representatives, the Forward Sellers and the Forward Purchasers certificates of the Chief Financial Officer of the Company, dated the date of this Agreement and such Closing Date, respectively, in form and substance satisfactory to the Representatives. (g) At the Closing Date, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(f) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date. (h) Subsequent to the ~~date hereof or, if earlier, the~~ respective dates as of which information is given in the Registration ~~Statement,~~ Statement and the ~~Prospectus or the~~ Pricing Disclosure Package, there shall not have been ~~(i)~~ any change or decrease specified in the letter or letters referred to in paragraph (ge) of this Section 7 which makes it impractical or inadvisable in the judgment of the Representatives, the Forward Sellers or the Forward Purchasers to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated by the Pricing Disclosure Package. (h) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded any debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) ~~any change~~no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any ~~development involving a prospective change,~~ such announcement with respect to any third parties insuring such debt securities). (i) Since the most recent dates as of which information is given in ~~or affecting~~ the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition ~~(financial or otherwise), earnings, business or properties~~ of the Company and its ~~subsidiaries,~~ subsidiaries taken as a whole, financial or otherwise, whether or not arising ~~from transactions~~ in the ordinary course of business, ~~except~~ otherwise than as set forth in or contemplated in the ~~Registration Statement, the Prospectus~~ Pricing Disclosure Package and the ~~Disclosure Package~~Prospectus, the effect of ~~which, in any case referred to in clause (i) or (ii) above, is,~~ which is in the ~~sole~~ judgment of the Underwriters, the Forward ~~Purchasers and~~ Sellers or the Forward ~~Sellers,~~ Purchasers so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to proceed with the ~~offering~~ offering, sale or the delivery of the ~~Securities as~~ Shares on the terms and in the manner contemplated by this Agreement and the Prospectus. (j) The Representatives shall not have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the ~~Prospectus~~ opinion of Counsel for the Underwriters is material or omits to state a fact which in the opinion of Counsel for the Underwriters is material and is required to be stated therein or is necessary to make the ~~Disclosure Package~~statements therein not misleading. (ik) ~~Prior~~ No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of such Closing Date, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of such Closing Date, prevent the issuance or sale of the Shares. (l) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the Forward Sale Agreements or any Additional Forward Sale Agreement, as applicable, and the transactions contemplated hereby and thereby shall be reasonably satisfactory to Counsel for the Underwriters, the Forward Sellers and the Forward Purchasers and prior to such Closing Date, the Company shall have furnished to the ~~Underwriters~~Representatives, the Forward ~~Purchasers~~ Sellers and the Forward ~~Sellers~~ Purchasers such ~~further~~ other customary information, certificates and documents as ~~the Underwriters, the Forward Purchasers and the Forward Sellers~~ they may reasonably request. (jm) ~~Subsequent~~ Any Company Shares to be delivered at such Closing Date and the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities Issuable Shares shall have been ~~listed and admitted and authorized~~ approved for ~~trading~~ listing on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers and the Forward Sellers. 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 the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters, the Forward Purchasers and the Forward Sellers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters, the Forward Purchasers and the Forward Sellers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Sidley Austin llp, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing DateNasdaq.

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Xcel Energy Inc)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The obligations of the several Underwriters and the several Forward Sellers ~~shall be~~ are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company 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) No The representations and warranties of the Company and the Operating Partnership contained herein shall be true and correct on the date hereof and on and as of the Closing Date. (b) The Registration Statement has become effective and, at the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement,~~ Statement or ~~notice objecting to its use, shall have~~ any post-effective amendment thereto has been issued by under the ~~Commission~~ Securities Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for ~~that purpose~~ any of those purposes or pursuant to ~~Rule~~ Section 8A of the Securities Act ~~shall~~ have been instituted or ~~threatened. The Prospectus containing~~ are pending or, to the ~~Rule 430B Information shall have been filed~~ Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for ~~such filings under Rule 433~~additional information. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of under the ~~1933~~ Securities Act ~~Regulations~~ without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of under the ~~1933~~ Securities Act ~~Regulations~~ and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (bc) Subsequent to the execution and delivery of this Agreement and the Forward Sale Agreements 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 the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and the Subsidiaries, taken as a whole, from the respective dates of the Registration Statement, the Time of Sale Prospectus and the Prospectus that, in the Underwriters’ judgment, is material and adverse and that makes it, in the Underwriters’ judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus. (d) The ~~Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the~~ Underwriters, the Forward ~~Purhasers~~ Purchasers and the Forward Sellers ~~their opinion~~ shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company and the Operating Partnership, to the effect set forth in ~~Exhibit A attached hereto~~Section 6(c)(i) and to the effect that: (i) the representations and warranties of the Company and the Operating Partnership contained in this Agreement are true and correct as of the date hereof and as of the Closing Date and that; (ii) each of the Company and the Operating Partnership has complied with all of its agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or, to the knowledge of the Company or the Operating Partnership, threatened by the Commission; (iv) the preliminary prospectus, the Prospectus and any Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of the Time of Sale, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and (vi) as of such date, and as of the Time of Sale, the Time of Sale Prospectus did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that such certificate shall not apply to any statements or omissions relating to any Underwriter, Forward Purchaser or Forward Seller made in reliance upon and in conformity with information furnished in writing to the Company by such Underwriter, Forward Purchaser or Forward Seller through you expressly for use in the Time of Sale Prospectus. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (e) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, with respect to the matters identified in Exhibits A-1 and A-2 hereto. In giving such opinions, such counsel may rely, as to matters of fact, to the extent it deems proper, on certificates of officers of the Company and certificates of public officials. (f) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received on the Closing Date, an opinion of Xxxxxxx Xxxxx LLP, Maryland counsel to the Company, dated the Closing Date, with respect to the matters identified in Exhibit B hereto. (g) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received on the Closing Date an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel to the Operating Partnership, dated the Closing Date, with respect to the matters identified in Exhibit C hereto. (h) The Underwriters, the Forward Purchasers and ~~addressed to~~ the Forward Sellers shall have received on the Closing Date an opinion of Sidley Austin LLP, counsel for the Underwriters, the Forward Purchasers and the Forward ~~Sellers~~Sellers dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In ~~rendering~~ giving such ~~opinion~~opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxxxx Xxxxx LLP referred to in Section 6(f) and, as to all matters governed by Delaware law, upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. referred to in Section 6(g). In giving such opinions, such counsel may ~~rely~~ rely, as to matters of fact, to the extent ~~they deem~~ it deems proper, on certificates of ~~responsible~~ officers of the Company and certificates of public officials. (c) The Company shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (di) The Underwriters, the Forward Purchasers and the Forward Sellers shall have ~~received from Sidley Austin llp~~received, ~~counsel for~~ on each of the ~~Underwriters the Forward Purchasers~~ date hereof and the ~~Forward Sellers~~Closing Date, ~~such opinion or opinions,~~ a letter dated the date hereof or the Closing ~~Date~~ Date, as the case may be, in form and ~~addressed~~ substance satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward Purchasers and the Forward Sellers 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 Underwriters, the Forward Purchases and the Forward Sellers a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. (f) At the time of the execution of this Agreement, the Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Ernst & Young ~~LLP a letter~~LLP, ~~dated such date, in form and substance satisfactory to the Underwriters~~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 ~~or deemed to be incorporated by reference in~~ into the Registration Statement, the Time of Sale Prospectus or and the ~~Disclosure Package~~Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (gj) At The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and the parties identified on Exhibit E hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date~~, the~~ . (k) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received ~~from Ernst & Young LLP~~ on the Closing Date a ~~letter~~certificate of the chief financial officer of the Company, dated as of the Closing Date, ~~to the effect that they reaffirm the statements made~~ substantially in the ~~letter furnished pursuant to Section 7(f) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date~~form of Exhibit F hereto. (hl) ~~Subsequent to~~ All filings with the ~~date hereof or, if earlier,~~ Commission required by Rule 424 under the ~~dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there~~ Securities Act shall ~~not~~ have been filed within the applicable time period prescribed for such filing by Rule 424 (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwisewithout reliance on Rule 424(b)(8), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, the Forward Purchasers and the Forward Sellers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package). (im) ~~Prior~~ The Shares and any shares deliverable pursuant to the ~~Closing Date, the Company~~ Forward Sale Agreements shall have ~~furnished~~ been approved for listing on the NYSE, subject only to a notice of issuance. (n) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule. (o) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the ~~Underwriters~~delivery to the Representatives, the Forward Purchasers and the Forward Sellers ~~such further information, certificates~~ on the applicable Option Closing Date of the following: (i) the representations and ~~documents as~~ warranties of the ~~Underwriters, the Forward Purchasers~~ Company and the ~~Forward Sellers may reasonably request.~~Operating Partnership contained herein shall be true and correct on the date hereof and on and as of such Option Closing Date; (jii) ~~Subsequent to~~ a certificate, dated the ~~date hereof, there shall not have been any decrease in the rating of any~~ Option Closing Date and signed by an executive officer of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers Company and the ~~Forward Sellers. If any of~~ Operating Partnership, confirming that 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 the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters, the Forward Purchasers and the Forward Sellers hereunder may be cancelled at, or at any time prior to, certificate delivered on the Closing Date ~~by the Underwriters, the Forward Purchasers~~ pursuant to Section 6(d) remains true and ~~the Forward Sellers. Notice~~ correct as of such ~~cancellation shall be given~~ Option Closing Date; (iii) an opinion of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the ~~Company in writing or by telephone or facsimile confirmed in writing. The documents required~~ Additional Shares to be ~~delivered~~ purchased on such Option Closing Date and otherwise to the same effect as the opinion required by ~~this~~ Section ~~7 shall~~ 6(e); (iv) an opinion of Xxxxxxx Xxxxx LLP, Maryland counsel to the Company, dated the Option Closing Date, relating to the Additional Shares to be ~~delivered at~~ purchased on such Option Closing Date and otherwise to the ~~office~~ same effect as the opinion required by Section 6(f); (v) an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel to the Operating Partnership, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(g); (vi) an opinion of Sidley Austin ~~llp~~LLP, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, ~~at 000 Xxxxxxx Xxxxxx~~dated the Option Closing Date, ~~Xxx Xxxx~~relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(h); (vii) a letter dated the Option Closing Date, ~~Xxx Xxxx 00000~~in form and substance satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers, from Ernst & Young LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters, the Forward Purchasers and the Forward Sellers pursuant to Section 6(i); provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and (viii) such other documents as you may reasonably request with respect to the good standing of the Company and the Operating Partnership, the due authorization and issuance of the Company Top-Up Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Company Top-Up Additional Shares.

Appears in 1 contract

Samples: Underwriting Agreement (Spirit Realty, L.P.)

Conditions to the Obligations of the Underwriters and the Forward Sellers. The obligations of the Underwriters and the Forward Sellers shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company 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) No stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, shall have been issued by the Commission and no proceedings for that purpose or pursuant to Rule 8A of the Securities Act shall have been instituted or threatened. The Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (b) The Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters, the Forward ~~Purhasers~~ Purchasers and the Forward Sellers their opinion to the effect set forth in Exhibit A attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (c) The Company shall have requested and caused Xxxxx Xxxx LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and Xxxxxxxx & Xxxxxxxx LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, in form and substance reasonably satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. (d) The Underwriters, the Forward Purchasers and the Forward Sellers shall have received from Sidley Austin llp, counsel for the Underwriters the Forward Purchasers and the Forward Sellers, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters, the Forward Purchasers and the Forward Sellers 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 Underwriters, the Forward Purchases and the Forward Sellers a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. (f) At the time of the execution of this Agreement, the ~~Underwriters, the Forward Purchasers~~ Underwriters and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package. (g) At the Closing Date, the ~~Underwriters, the Forward Purchasers~~ Underwriters and the Forward Sellers shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(f) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date. (h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, the Forward Purchasers and the Forward Sellers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package. (i) Prior to the Closing Date, the Company shall have furnished to the Underwriters, the Forward Purchasers and the Forward Sellers such further information, certificates and documents as the Underwriters, the Forward Purchasers and the Forward Sellers may reasonably request. (j) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading. (k) The Securities and the Confirmation Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters, the Forward Purchasers and the Forward Sellers. 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 the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters, the Forward Purchasers and the Forward Sellers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters, the Forward Purchasers and the Forward Sellers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Sidley Austin llp, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (UDR, Inc.)

Common use of Conditions to the Obligations of the Underwriters and the Forward Sellers Clause in Contracts