Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the Representatives. (c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives. (d) [Reserved]. (e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III. (h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that: (i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and (ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date. (i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date. (j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities. (m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Brixmor Operating Partnership LP), Underwriting Agreement (Brixmor Operating Partnership LP), Underwriting Agreement (Brixmor Operating Partnership LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any Settlement Date pursuant to Section 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company Company, BPG Subsidiary, the Operating Partnership and the Operating PartnershipSelling Stockholders, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date or the applicable Settlement Date, as the case may be, and addressed to the Representatives.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Maryland counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date or the applicable Settlement Date, as the case may be, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the applicable Settlement Date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Company, BPG Subsidiary and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of BPG Subsidiary and the Operating Partnership, dated the Closing Date or the applicable Settlement Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company Company, BPG Subsidiary and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date or the applicable Settlement Date, as the case may be, with the same effect as if made on such date, and each of the Company Company, BPG Subsidiary and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the applicable Settlement Date, as the case may be;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company Company, BPG Subsidiary and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date or the applicable Settlement Date, as the case may be, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date or the applicable Settlement Date, as the case may be, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the applicable Settlement Date, as the case may be.
(i) On the date of this Agreement, and on the Closing Date and on any Settlement Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date or any applicable Settlement Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date and any Settlement Date, the Company, BPG Subsidiary, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date or the applicable Settlement Date, as the case may be.
Appears in 3 contracts
Samples: Underwriting Agreement (Brixmor Property Group Inc.), Underwriting Agreement (Brixmor Property Group Inc.), Underwriting Agreement (Brixmor Property Group Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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) The If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells Cxxxxxxx Chance US LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives.Representative, in the form attached hereto as Exhibit A.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx Mxxxx & Xxxxxxxx LLPVxx Xxxxx, PLLC, local counsel for the Selling StockholdersCompany, to have furnished to the Representatives Representative their opinion substantially opinion, dated the Closing Date and addressed to the Representative, in the form attached hereto as Annex IIExhibit B.
(d) The Company shall have requested and caused Cxxxxxxx Chance US LLP, tax counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date, Date and addressed to the Representatives.
(d) [Reserved].Representative, in the form attached hereto as Exhibit C.
(e) The Representatives Company shall have requested and caused Vxxxxxx LLP, Maryland counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form attached hereto as Exhibit D.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx Gxxxxxx Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fg) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageProspectus, any supplements to the Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, Disclosure Package and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or in the Prospectus, and any document that is incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)therein, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company and its subsidiariesSubsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are independent registered public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its Subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and board committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its Subsidiaries as to transactions and events subsequent to December 31, 2006, nothing came to their attention which caused them to believe that:
(A) with respect to the period subsequent to December 31, 2006, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its Subsidiaries or capital stock of the Company as compared with the amounts shown on the December 31, 2006 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from January 1, 2007 to such specified date there were any decreases, as compared with the amounts shown on the statement of operations for the corresponding period in the previous year, in consolidated net revenues of the Company and its Subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; and
(B) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its Subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus agrees with the accounting records of the Company and its Subsidiaries, excluding any questions of legal interpretation; References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 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 Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Prospectus (exclusive of any amendment or supplement thereto).
(lj) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(k) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in Section 3(a)(62) any such rating or of a possible change in any such rating that does not indicate the direction of the Exchange Act)possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and (ii) no satisfactory evidence of such organization actions shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of been provided to the Company’s debt securitiesRepresentative.
(m) Prior The NASD, upon review of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestUnderwriters’ participation in same.
(n) At or prior to the Execution Time, the The Company shall have furnished to the Representatives Representative a letter substantially in the form of Exhibit A E hereto from each director and executive officer and director of the Company named in the Registration Statement and each of the other persons listed on Schedule IV hereto addressed to the RepresentativesProspectus. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx Cxxxxxxx Chance US LLP, counsel for the UnderwritersCompany, at 30 Xxxx Xxxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Cogdell Spencer Inc.), Underwriting Agreement (Cogdell Spencer Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date Date, with respect to the Underwritten Securities and Option Securities purchased on the Closing Date, and any settlement date pursuant to Section 4 3 hereof, with respect to the Option Securities purchased after the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriters shall have requested and caused Xxxxx Lovells US LLP, counsel for received the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iletter, dated as of the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx Underwriters, of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representativesof Schedule IV hereto.
(d) [Reserved].
(ec) The Representatives Underwriters shall have received from SkaddenWeil, Arps, Slate, Xxxxxxx Gotshal & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request that are necessary and customary for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipOfficer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive form of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Schedule V hereto.
(ge) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Financial Officer Secretary or Assistant Secretary of the Company, dated the date hereofClosing Date, substantially certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the form resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached hereto as Annex IIIto such certificate.
(hf) Each Selling Stockholder The Company shall have requested and caused Withum to have furnished to the Representatives a certificate of Underwriters, at the Selling Stockholder, dated Execution Time and at the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties letters, dated respectively as of the Selling Stockholder in this Agreement are true and correct on Execution Time and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesUnderwriters, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from September 18, 2020 (date of inception) through September 23, 2020, provided that the cutoff date shall not be more than two (2) Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial information statement schedules included or incorporated by reference in the Registration Statement, the Disclosure Package Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus; provided, that including the letter delivered on information set forth under the Closing Date shall use a captions “cut-offDilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date no more than three business days prior to such dateof the letters.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, operations, condition (financial or otherwise), results of operations, business, properties ) or prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesUnderwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(lh) Subsequent FINRA shall not have raised any objection with respect to the Execution Time, fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) there The Securities shall not be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been any decrease in provided to the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesUnderwriters.
(mj) Prior On the Effective Date, the Company shall have delivered to the Underwriters executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement.
(k) At least one Business Day prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Sponsor shall have furnished caused the purchase price for the Private Placement Warrants to be deposited into the Representatives such further information, certificates and documents as the Representatives may reasonably requestTrust Account.
(nl) At No order preventing or prior suspending the sale of the Units in any jurisdiction designated by the Underwriters pursuant to the Execution Time, the Company Section 5(g) hereof shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director been issued as of the Company Closing Date, and each of the other persons listed on Schedule IV hereto addressed to the Representativesno proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of SkaddenWeil, Arps, Slate, Xxxxxxx Gotshal & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxxx 000 Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (TS Innovation Acquisitions Corp.), Underwriting Agreement (TS Innovation Acquisitions Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofand any Option Closing Date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their opinion opinion, dated the Closing Date and letter substantially the applicable Option Closing Date(s), if any, and addressed to the Representative, in the form attached hereto as in Annex IA hereto, in form and substance reasonably satisfactory to the Representative.
(c) The Representative shall have received an opinion, dated the Closing Date, of Xxxxxx & Xxxxxx LLP, counsel for Azteca Acquisition Holdings, LLC and Xxxxx Muse, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPRepresentative, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as in Annex IIB hereto, in form and substance reasonably satisfactory to the Representative.
(d) The Representatives shall have received an opinion, dated the Closing Date, of Xxxxxx Xxxxxx, general counsel of Luxor Capital Group, LP, the investment manager of Luxor Spectrum Offshore Master Fund, LP, and an opinion of Xxxxxx and Calder, dated the Closing Date and addressed to the Representatives.
(d) [Reserved]Representative, in form and substance reasonably satisfactory to the Representative.
(e) The Representatives Representative shall have received an opinion, dated the Closing Date, of Lerman Senter PLLC, dated the Closing Date and the applicable Option Closing Date(s), if any, and addressed to the Representative, in the form attached in Annex C hereto, in form and substance reasonably satisfactory to the Representative.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and the applicable Option Closing Date(s), if any, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Selling Stockholders shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fg) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer principal executive officer of the Company and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing DateDate and the applicable Option Closing Date(s), if any, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership contained in Section 1 of this Agreement are true and correct on and as of the Closing DateDate or the applicable Option Closing Date(s), if any, and with the same effect as if made on such datethe Closing Date or the applicable Option Closing Date(s), if any, and each of the Company and the Operating Partnership has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the Closing DateDate or the applicable Option Closing Date(s), if any;
(ii) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(h) The Company shall have requested and caused McGladrey LLP to have furnished to the Representative, at the Execution Time and at the Closing Date and the applicable Option Closing Date(s), if any, letters dated, respectively, as of the Execution Time and as of the Closing Date and the applicable Option Closing Date(s), if any, in form and substance satisfactory to the Representative.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 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 Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(nk) At The Securities shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representative.
(l) FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or prior the Underwriters’ participation in same.
(m) Prior to the Execution Time, the Company shall have furnished to the Representatives Representative a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company and each stockholder of the other persons Company listed on Schedule IV VI hereto addressed to the RepresentativesRepresentative. The Company will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(n) Each Selling Stockholder shall have delivered to the Representative, prior to or at the Closing Date, a properly completed and executed IRS Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and the Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing DateDate and the applicable Option Closing Date(s), if any.
Appears in 2 contracts
Samples: Underwriting Agreement (Hicks, Muse, Tate & Furst Equity Fund Iii, L.P.), Underwriting Agreement (Hemisphere Media Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Xxxxxxxx & Xxxxx Lovells US LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., in substantially the form attached hereto as Exhibit C.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP[•], counsel for the Selling Stockholders, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.Exhibit D.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(gf) The Company shall have furnished to furnished, on the Representatives date hereof and the Closing Date, as the case may be, a certificate of the Company, dated such date and signed by the Chief Financial Officer in his capacity as such on behalf of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIpreviously agreed among the parties hereto.
(hg) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by or on behalf of the such Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate have carefully examined the Selling Stockholder Information in the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; andthe Closing Date.
(iih) On or prior to the date hereof, the Representatives shall have received lock-up letters in the form attached as Exhibit A from each executive officer and director of the Company, from each Selling Stockholder has complied with all and from such other stockholders of the agreements and satisfied all the conditions on its part to be performed or satisfied at Company as set forth in Schedule II hereto.
(i) On or prior to the Closing Date.
, the Custodian will deliver to the Representatives a letter stating that it will deliver to each Selling Stockholder a United States Treasury Department Form 1099 (ior other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) On on or before January 31 of the year following the date of this Agreement, .
(j) FINRA has confirmed that it has not raised any objection with respect to the fairness and on reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(k) The Company shall have requested and caused Xxxxx Xxxxxxx LLP to have furnished to the Representatives at the Execution Time and at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representativesletters, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (j) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) 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 Representatives.
(o) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each [names of the other persons listed on Schedule IV hereto major stockholders that are not Selling Stockholders] addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx 0 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xxxxx X. Xxxxxxxxxxx, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (GrubHub Inc.), Underwriting Agreement (GrubHub Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods term period prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused O’Melveny & Xxxxx Lovells US LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iits opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex B hereto.
(c) The Selling Stockholders Company shall have caused Xxxxxx X. Xxxxxxxxx, Executive Vice President-Corporate Development, General Counsel and Secretary of the Company to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, to the effect as set forth in Annex C hereto.
(d) AMDI shall have requested and caused its counsel, Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIits opinion, dated the Closing Date, Date and addressed to the Representatives.
(d) [Reserved], to the effect set forth in Annex D hereto.
(e) Fujitsu shall have requested and caused its counsel, Xxxxxxxx & Xxxxxxxx LLP, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex E hereto.
(f) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date hereof, pursuant to Section 3 hereto substantially in the form attached hereto as Annex IIIof Exhibit A hereto.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the certificate, signed by an officer such Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of caused Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference effect set forth in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateAnnex F hereto.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), ) the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lk) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes Rule 436(g) under the Act) or any notice given of any intended or potential decrease in Section 3(a)(62) any such rating or of a possible change in any such rating that does not indicate the direction of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitieschange.
(ml) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(m) The Securities shall have been included for listing on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Representatives.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter addressed to the Representatives substantially in the form of Exhibit A B hereto from each officer of the executive officers and director directors of the Company and from an authorized officer of each of the other persons listed on Schedule IV hereto addressed to the RepresentativesAMDI and Fujitsu. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx 0000 Xx Xxxxxx Xxxx, XX Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Spansion Inc.), Underwriting Agreement (Advanced Micro Devices Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iits opinion, dated the Closing Date and addressed to the Representatives., as set forth in Exhibit B.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLPYoung, PLLC, regulatory counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives.Representatives as set forth in Exhibit C.
(d) [Reserved].Certain Selling Stockholders shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for Long Bar Miramar LLC, Walkers, counsel for Indigo Florida L.P. and Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for OCM Spirit Holdings III-A, LLC, POF Sprit Domestic Holdings, LLC and POF Spirit Foreign Holdings, LLC to have furnished to the Representatives their opinions, dated the settlement date for the Securities and addressed to the Representatives as set forth in Exhibit D.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed executed on its behalf by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed executed on its behalf by the Chief Financial Officer principal financial or accounting officer of the Company, dated the date hereofClosing Date, substantially as set forth in the form attached hereto as Annex III.Exhibit E.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder, if applicable, or an attorney-in-fact on behalf of each Selling Stockholder, dated the Closing Datesettlement date of the Securities, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the settlement date of the Securities and that the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch settlement date.
(i) On The Company shall have requested and caused Ernst & Young LLP to have furnished to the date of this Agreement, Representatives at the Execution Time and on at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representativesletters, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference effect set forth in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.Exhibit F.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mk) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nl) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market.
(m) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto Selling Stockholder addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Spirit Airlines, Inc.), Underwriting Agreement (Oaktree Capital Management Lp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Stockholder made in any opinions, certificates and letters pursuant to the provisions hereof or required to be delivered pursuant to Section 3 hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditionsconditions as of the Closing Date and any settlement date pursuant to Section 3 hereof:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their opinion and letter substantially in the form attached hereto as Annex Iletter, dated the Closing Date and addressed to the RepresentativesRepresentative, in form and substance satisfactory to the Representative.
(c) The Selling Stockholders Stockholder shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersStockholder, to have furnished to the Representatives Representative their opinion substantially in the form attached hereto as Annex IIand letter, dated the Closing Date, Date and addressed to the RepresentativesRepresentative, in form and substance satisfactory to the Representative.
(d) [Reserved]Xxxxxxx X. Power, General Counsel of the Company, shall have furnished to the Representative his opinion letter, dated the Closing Date and addressed to the Representative, in form and substance satisfactory to the Representative.
(e) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in or incorporated by reference in into the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives Representative a certificate of the Selling Stockholder, signed by an officer of, or other authorized person on behalf of, the general partner of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date; and
(ii) the Closing Date and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ih) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of caused Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the RepresentativesRepresentative, at the request of Execution Time and at the CompanyClosing Date, a letter, dated respectively as of the respective dates Execution Time and as of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesClosing Date, containing such statements and information of the type customarily as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference disclosure contained in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that in form and substance satisfactory to the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateRepresentative.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(lj) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(k) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act)) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and (ii) no satisfactory evidence of such organization actions shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of been provided to the Company’s debt securitiesRepresentative.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives Representative a letter substantially in the form of Exhibit A hereto from the Selling Stockholder and each officer and director of the Company and each of named in the other persons listed on Schedule IV hereto Registration Statement addressed to the RepresentativesRepresentative. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and the Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, at 0000 Xxxx Xxxxx Xxxxxx, Xxx XxxxSuite 1100, XX 00000Dallas, Texas 75201, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Continental Building Products, Inc.), Underwriting Agreement (Continental Building Products, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Initial Sale Time and as of the Closing Date pursuant (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to Section 4 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxx LLP, U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., to the effect set forth in Annex I hereto;
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Blake, Xxxxxxx & Xxxxxxxx Xxxxxxx LLP, Canadian counsel for the Selling StockholdersCompany, to shall have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives., with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex IIa and Annex IIb;
(d) [Reserved].
(e) The Representatives shall have received from SkaddenXxxx, ArpsWeiss, SlateRifkind, Xxxxxxx & Xxxx Xxxxxxxx LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(e) The Representatives shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Vice-President, Finance and Treasurer and the Executive Vice-President, Corporate Development and Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageCanadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:Agreement;
(iii) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the knowledge of Company’s knowledge, instituted or threatened by the Company and Reviewing Authority or the Operating Partnership, threatened; andCommission;
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any supplement thereto)Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Disclosure Package; and
(v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Initial Sale Time and the Closing Date, the Representatives shall have received from KPMG LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other 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 in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus;
(h) Subsequent to the Initial Sale Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Initial Sale Time, the Canadian Final Prospectus as amended or supplemented prior to the Initial Sale Time, the Disclosure Package or any Issuer Free Writing Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 5 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 Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any amendment or supplement thereto) Disclosure Package the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).Issuer Free Writing Prospectus;
(li) Subsequent to the Execution Initial Sale Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and ) 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;
(iij) no such organization shall have publicly announced that it If the Registration Statement or an offering of Securities has under surveillance or been filed with the FINRA for review, the FINRA shall not have raised any objection with possible negative implications, its ratings of any respect to the fairness and reasonableness of the Company’s debt securities.underwriting terms and arrangements; and
(mk) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 5 shall be delivered at the office of Skaddenthe Company, ArpsAttention: Corporate Secretary, Slate000 — 0xx Xxxxxx X.X., Xxxxxxx & Xxxx LLPXxxxxxx, counsel for the UnderwritersXxxxxxx, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, X0X 0X0 on the Closing DateDate or such other place as the Company and the Representatives shall so agree.
Appears in 2 contracts
Samples: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities pursuant to an Underwriting Agreement shall be subject subject, in the discretion of the Representatives acting reasonably, to the accuracy of the representations and warranties on the part of the Company Issuer and the Selling Stockholders contained herein Guarantor in or incorporated by reference in the Underwriting Agreement as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company Issuer and the Selling Stockholders Guarantor made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company Issuer and the Guarantor of its their obligations hereunder and to the following additional conditions:
(ai) The Prospectus, and any supplement thereto, Canadian Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) the U.S. Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 and Rule 424(b) under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued by the Commission and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued by the Reviewing Authority and no proceeding for that any such purpose shall have been instituted initiated or, to the knowledge of the Issuer or threatenedthe Guarantor, threatened by the Commission or the Reviewing Authority; and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives' reasonable satisfaction.
(b) The Company Parent shall have requested and caused Xxxxx Lovells US Torys LLP, U.S. counsel for the Company Issuer and the Operating PartnershipGuarantor, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) The Issuer has been duly organized as a general partnership under the representations Delaware Revised Uniform Partnership Act with the power and warranties authority to own property and to conduct its business as described in the U.S. Prospectus and to execute, deliver and perform its obligations under each of the Selling Stockholder in this Agreement are true Underwriting Agreement, the Underwritten Securities and correct on and as of the Closing Date, with the same effect as if made on such date; andIndenture.* * Securities issued by PCF.
(ii) Each of the Selling Stockholder has complied with all Registration Statement and the agreements and satisfied all the conditions U.S. Prospectus, as of their respective effective or issue dates, appears on its part face to be performed or satisfied at or prior appropriately responsive in all material respects to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request requirements of the Company, a letter, dated Act and the respective dates of delivery thereof rules and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information regulations of the type customarily included in accountants’ “comfort letters” to underwriters with respect to Commission under the Act (the "Rules and Regulations"), except for the financial statements statements, financial statement schedules and certain other financial information data included or incorporated by reference in the Registration Statement, the Disclosure Package or omitted from either of them and the ProspectusForm T-1, as to which such counsel need express no opinion; providedthe Form F-X, that as of its date, appears on its face to be appropriately responsive in all material respects to the letter delivered on requirements of the Closing Date shall use a “cut-off” date no more than three business days prior to such dateAct.
(jiii) In No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to document which such counsel need express no opinion) is required under any Applicable Law for the Underwriters’ compliance with the reporting and withholding provisions issuance or sale of the Tax Equity Underwritten Securities or the performance by the Issuer and Fiscal Responsibility Act the Guarantor of 1982 with respect their respective obligations under the Underwriting Agreement and the Indenture. For purposes of this opinion, the term "Governmental Authority" means any executive, legislative, judicial, administrative or regulatory body of the State of New York or the United States of America. For purposes of this opinion, the term "Applicable Law" means those laws, rules and regulations of the United States of America and the State of New York, in each case which in such counsel's experience are normally applicable to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as type contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Underwriting Agreement.
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Petro Canada), Underwriting Agreement (PC Financial Partnership)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to Section 4 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxx LLP, U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., to the effect set forth in Annex I hereto;
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx Stikeman Elliott LLP, Canadian counsel for the Selling StockholdersCompany, to shall have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives., with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex IIa and Annex IIb;
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(e) The Representatives shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the Executive Vice-President and Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageCanadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:Agreement;
(iii) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the knowledge of Company’s knowledge, instituted or threatened by the Company and Reviewing Authority or the Operating Partnership, threatened; andCommission;
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Execution Time, and the Prospectus (exclusive of any supplement thereto)Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, as amended or supplemented prior to the Execution Time, and the Disclosure Package; and
(v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Execution Time and the Closing Date, the Representatives shall have received from KPMG LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other 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 in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus;
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Execution Time, the Canadian Final Prospectus as amended or supplemented prior to the Execution Time, the Disclosure Package or any Issuer Free Writing Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 5 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 Canadian Final Prospectus, as amended or supplemented prior to the Execution Time, and the Prospectus (exclusive of any amendment or supplement thereto) Disclosure Package the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).Issuer Free Writing Prospectus;
(li) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in Section 3(a)(62) any such rating or of a possible change in any such rating that does not indicate the direction of the Exchange Act), and possible change;
(iij) no such organization shall have publicly announced that it If the Registration Statement or an offering of Securities has under surveillance or been filed with the FINRA for review, the FINRA shall not have raised any objection with possible negative implications, its ratings of any respect to the fairness and reasonableness of the Company’s debt securities.underwriting terms and arrangements; and
(mk) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 5 shall be delivered at the office of Skaddenthe Company, ArpsAttention: Vice-President, SlateFinance Law, Xxxxxxx & Xxxx LLP000 — 0xx Xxxxxx X.X., counsel for the UnderwritersXxxxxxx, at Xxxx Xxxxx XxxxxxXxxxxxx, Xxx Xxxx, XX 00000, X0X 0X0 on the Closing DateDate or such other place as the Company and the Representatives shall so agree.
Appears in 2 contracts
Samples: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iits opinion, dated the Closing Date and addressed to the Representatives., as set forth in Exhibit B.
(c) The Company shall have requested and caused Xxxxxxxx & Young, PLLC, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives as set forth in Exhibit C.
(d) The Selling Stockholders shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersIndigo Miramar LLC, Walkers, counsel for Indigo Florida L.P. and Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for OCM Spirit Holdings, LLC, OCM Spirit Holdings II, LLC and POF Spirit Foreign Holdings, LLC to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinions, dated the Closing Date, settlement date for the Option Securities and addressed to the Representatives.
(d) [Reserved].Representatives as set forth in Exhibit D.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed executed on its behalf by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder, dated the Closing Datesettlement date of the Option Securities, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the settlement date of the Option Securities and that the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch settlement date.
(ih) On The Company shall have requested and caused Ernst & Young LLP to have furnished to the date of this Agreement, Representatives at the Execution Time and on at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representativesletters, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference effect set forth in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.Exhibit E.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nk) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto Selling Stockholder addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Oaktree Capital Management Lp), Underwriting Agreement (Spirit Airlines, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant Date, with respect to Section 4 hereofthe Underwritten Securities and Option Securities purchased on the Closing Date, and any settlement date, with respect to Option Securities purchased after the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion its opinions and letter substantially in the form attached hereto as Annex Inegative assurance letter, each dated the Closing Date or settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxx and Calder, Cayman Islands counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, its opinions dated the Closing DateDate or settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing DateDate or settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing DateDate or settlement date, as applicable, to the effect that the signers signer of such certificate have has carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure PackageProspectus, the Statutory Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing DateDate or settlement date, as applicable, with the same effect as if made on such the Closing Date or settlement date, as applicable, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or settlement date, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(gf) The Company shall have furnished requested and caused Xxxxxx to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request Execution Time and at the Closing Date or settlement date, as applicable, letters, dated respectively as of the CompanyExecution Time and as of the Closing Date or settlement date, a letter, dated the respective dates of delivery thereof and addressed to the Underwritersas applicable, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of February 11, 2021 and for the period from February 11, 2021 (date of inception) through February 12, 2021, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial information statement schedules included or incorporated by reference in the Registration Statement, the Disclosure Package Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus; provided, that including the letter delivered on information set forth under the Closing Date shall use a captions “cut-offDilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date no more than three business days prior to such dateof the letter.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), results of operations, business, properties ) or prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mh) Prior to the Closing DateDate or settlement date, as applicable, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ni) At FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Global Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Execution TimeClosing Date, the Company shall have furnished delivered to the Representatives a letter substantially executed copies of the Trust Agreement, the Warrant Agreements, the Rights Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date and any settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the form offering as of Exhibit A hereto from each officer such Closing Date or such settlement date, as applicable, and director the public offering price per Unit as set forth on the cover of the Company and each Prospectus.
(m) No order preventing or suspending the sale of the other persons listed on Schedule IV hereto addressed Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or such settlement date, as applicable, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentatives or the obligation of the Underwriters to purchase the Option Units on the applicable settlement date shall be cancelled, as applicable. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Ropes & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxx Xxxxxx, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Bleuacacia LTD), Underwriting Agreement (Bleuacacia LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Shareholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Shareholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedinitiated or, to the knowledge of the Company, threatened pursuant to Section 8A of the Securities Act.
(b) The Company shall have requested and caused Xxxxx Lovells US Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP and Faegre Drinker Bxxxxx & Rxxxx LLP, counsel counsels for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion opinions and letter substantially in the form attached hereto as Annex Iletters, each dated the Closing Date Date, or any such settlement date, as applicable, and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(c) The Selling Stockholders Shareholder shall have requested and caused Xxxxxxx Xxxxxxx Ropes & Xxxxxxxx Gray LLP, counsel for the Selling StockholdersShareholder, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing DateDate or any such settlement date, as applicable, and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx Sxxxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate or any such settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership Selling Shareholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing DateDate or any such settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment amendments or supplement supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing DateDate or any such settlement date, as applicable, with the same effect as if made on the Closing Date or any such settlement date, as applicable, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or any such settlement date, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Selling Shareholder shall have furnished to the Representatives a certificate, signed by an authorized officer of the Selling Shareholder, dated the Closing Date or any such settlement date, as applicable, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the Selling Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date or any such settlement date, as applicable, to the same effect as if made on the Closing Date or any such settlement date, as applicable.
(g) The Company shall have requested and caused RSM US LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date or any such settlement date, as applicable, letters (which may refer to letters previously delivered to one or more of the Representative), each dated respectively as of the Execution Time and as of the Closing Date or any such settlement date, as applicable, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date and any such settlement date shall use a “cut-off date” not earlier than three business days prior to such Closing Date or any such settlement date, as applicable.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of signed by the Company and each of the other persons listed on Schedule IV hereto hereto, in each case addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx Sxxxxx Xxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 700 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (V2X, Inc.), Underwriting Agreement (V2X, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date Date, the Option Closing Date, if any, and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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) The If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d424(b)(8) or 164(b) under the Act Act); the Registration Statement shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433remain effective; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Representative shall have received confirmation from Rxxxxxxx Bxxx Lxxxxxxx Gxxxxx Gxxxxxxx & Gxxxx P.C. that there are no claims to which its representation has been sought and that are outstanding in respect of the Company.
(c) The Company shall have requested and caused Xxxxx Lovells US LLPRxxxxxxx Brog Leinwand Gxxxxx Gxxxxxxx & Gxxxx P.C., securities counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their written opinion and letter substantially in the form attached hereto as Annex IRule 10b-5 negative assurance letter, dated the Closing Date or the Option Closing Date, as applicable, in form and addressed substance reasonably satisfactory to the RepresentativesRepresentative and its counsel.
(cd) The Selling Stockholders Representative shall have requested and caused received the Rule 10b-5 negative assurance letter of Lxxxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIUnderwriters’ counsel, dated the Closing Date or the Option Closing Date, as applicable, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related such matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel Lxxxxxxxxx Xxxxxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representative shall have received the opinion of [Law Offices of Dxxxxx X. Xxxx, PLLC], special intellectual property counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Representative shall have received the opinion of [Blooston, Mordkofsky, Dickens, Dxxxx & Pxxxxxxxxxx, LLP], general counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive Company or any other officers of the Operating PartnershipCompany acceptable to the Representative in its discretion, dated the Closing Date or the Option Closing Date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, Package and the Prospectus and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date or the Option Closing Date, as applicable, with the same effect as if made on such datethe Closing Date or the Option Closing Date, as applicable, date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as applicable;
(ii) no stop order or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to their knowledge, is contemplated by the knowledge of the Company and the Operating Partnership, threatened; andCommission or any state or regulatory body;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).Change; and
(giv) The the Company shall have furnished has complied with the terms and conditions of this Agreement on its part to be complied with up to the Representatives a certificate time of closing on the CompanyClosing Date or the Option Closing Date, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIapplicable,.
(h) Each Selling Stockholder The Representative shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct received on and as of the Closing Date or the Option Closing Date, with as applicable, satisfactory evidence of the same effect as if made on such date; and
(ii) good standing of the Selling Stockholder has complied with all Company and its subsidiary in writing from the agreements and satisfied all the conditions on applicable Secretary of State of its part to be performed or satisfied at or prior to the Closing Datejurisdiction of organization.
(i) On The Company shall have requested and caused the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall Auditors to have furnished to the RepresentativesRepresentative, at the request Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof Closing Date and addressed to the Underwritersany settlement date, in form and substance satisfactory to the RepresentativesRepresentative, containing statements and information confirming that each is an independent registered public accounting firm within the meaning of the type customarily included Securities Act and the Exchange Act and covering, without limitation, in accountants’ “comfort letters” to underwriters with respect to the case of the Former Auditor, the Company’s audited financial statements as of and certain for the year ended December 31, 2014, and in the case of the Current Auditor, the Company’s audited financial information included or incorporated by reference statements as of and the year ended December 31, 2015, and the various financial disclosures related thereto contained in the Registration Statement, the Disclosure Package Preliminary Prospectus, the Prospectus and the Prospectus; providedIssuer Free Writing Prospectuses, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateif any.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (A) any change, change or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions decrease specified in the ordinary course letters referred to in paragraph (h) of businessthis Section 4 or (B) any Material Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (A) or (B) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lk) Subsequent FINRA shall have raised no objection to the Execution Time, (i) there shall not have been any decrease in the rating of any fairness and reasonableness of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), underwriting terms and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesarrangements.
(ml) Prior to the Closing Date or the Option Closing Date, the Companyas applicable, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(m) The Company shall have filed a Listing of Additional Shares form with NASDAQ governing the Shares and the Warrant Shares to be listed thereunder.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in Representative Lock-Up Agreements executed by the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the RepresentativesLock-Up Parties. If any of the conditions specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 4 shall be delivered at the office of Skadden, Arps, Slate, Lxxxxxxxxx Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000the Closing Location, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (xG TECHNOLOGY, INC.), Underwriting Agreement (xG TECHNOLOGY, INC.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofand the applicable settlement date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement, the Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriters shall have requested received on the Closing Date and caused Xxxxx Lovells US any settlement date an opinion of Xxxx Xxxxxxx & Xxxxxx LLP, outside counsel for the Company and the Operating Partnership, to have furnished dated such date, with respect to the Representatives their matters identified in Exhibit A. The opinion and letter substantially of Xxxx Xxxxxxx & Xxxxxx LLP described in the form attached hereto as Annex I, dated the Closing Date and addressed Exhibit A shall be rendered to the RepresentativesUnderwriters at the request of the Company and shall so state therein. In giving the opinion with respect to the matters identified in Exhibit A, Xxxx Xxxxxxx & Xxxxxx LLP may rely, as to all matters governed by Maryland law, upon the opinion of Xxxx Xxxxx LLP referred to in Section 6(c) below.
(c) The Selling Stockholders Underwriters shall have requested received on the Closing Date and caused Xxxxxxx Xxxxxxx & Xxxxxxxx any settlement date an opinion of Xxxx Xxxxx LLP, Maryland counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IICompany, dated the Closing Datesuch date, and addressed with respect to the Representativesmatters identified in Exhibit B hereto. The opinion of Xxxx Xxxxx LLP described in Exhibit B shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) [Reserved]The Underwriters shall have received on the Closing Date and any settlement date an opinion of Xxxxxxxx Xxxxx Xxxxxxx, P.C., outside counsel for the Manager, dated such date, with respect to the matters identified in Exhibit C. The opinion of Xxxxxxxx Xxxxx Xxxxxxx, P.C. described in Exhibit C shall be rendered to the Underwriters at the request of the Manager and shall so state therein.
(e) The Representatives Underwriters shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx on the Closing Date and any settlement date an opinion of Sidley Austin LLP, counsel for the Underwriters, dated such date, in the form and substance reasonably satisfactory to the Underwriters. In giving such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents may rely, as they request for to all matters governed by Maryland law, upon the purpose opinion of enabling them Xxxx Xxxxx LLP referred to pass upon such mattersin Section 6(c) above.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyCompany on the Closing Date and any settlement date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Datesuch date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, such date with the same effect as if made on such date, date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Company Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(g) The Company Manager shall have furnished to the Representatives on the Closing Date and any settlement date a certificate of the Company, signed by the Chief Executive Officer and Chief Financial Officer of the CompanyManager, dated the date hereofsuch date, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Selling Stockholder Manager in this Agreement are true and correct on and as of the Closing Date, such date with the same effect as if made on such date; and
(ii) date and the Selling Stockholder Manager has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; and
(ii) since the Closing Daterespective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there has been no Manager Material Adverse Effect.
(ih) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of Ernst & Young LLP and used its commercially reasonable efforts to have caused Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date and each settlement date, letters, dated respectively as of the Company, a letter, dated the respective dates Execution Time and as of delivery thereof and addressed to the Underwriterseach such date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference of the Company, contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (A) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (B) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (A) or (B) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nk) The Securities shall have been approved for listing on the NYSE, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A D-1 hereto from each officer and director of the Company listed in Exhibit D-2 hereto and each of the other persons listed on Schedule IV hereto addressed to the Representatives.
(m) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and the arrangements relating to the offering of the Securities. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx Sidley Austin LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the each Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Altisource Residential Corp), Underwriting Agreement (Altisource Residential Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date Date, with respect to the Underwritten Securities and Option Securities purchased on the Closing Date, and any settlement date pursuant to Section 4 3 hereof, with respect to the Option Securities purchased after the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriters shall have requested and caused Xxxxx Lovells US LLP, counsel for received the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iletter, dated as of the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx Underwriters, of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representativesof Schedule IV hereto.
(d) [Reserved].
(ec) The Representatives Underwriters shall have received from SkaddenWeil, Arps, Slate, Xxxxxxx Gotshal & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request that are necessary and customary for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipOfficer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive form of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Schedule V hereto.
(ge) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Financial Officer Secretary or Assistant Secretary of the Company, dated the date hereofClosing Date, substantially certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the form resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached hereto as Annex IIIto such certificate.
(hf) Each Selling Stockholder The Company shall have requested and caused Withum to have furnished to the Representatives a certificate of Underwriters, at the Selling Stockholder, dated Execution Time and at the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties letters, dated respectively as of the Selling Stockholder in this Agreement are true and correct on Execution Time and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesUnderwriters, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from November 12, 2020 (date of inception) through December 31, 2020, provided that the cutoff date shall not be more than two (2) Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial information statement schedules included or incorporated by reference in the Registration Statement, the Disclosure Package Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus; provided, that including the letter delivered on information set forth under the Closing Date shall use a captions “cut-offDilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date no more than three business days prior to such dateof the letters.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, operations, condition (financial or otherwise), results of operations, business, properties ) or prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesUnderwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(lh) Subsequent FINRA shall not have raised any objection with respect to the Execution Time, fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) there The Securities shall not be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been any decrease in provided to the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesUnderwriters.
(mj) Prior On the Effective Date, the Company shall have delivered to the Underwriters executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement.
(k) At least one Business Day prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Sponsor shall have furnished caused the purchase price for the Private Placement Warrants to be deposited into the Representatives such further information, certificates and documents as the Representatives may reasonably requestTrust Account.
(nl) At No order preventing or prior suspending the sale of the Units in any jurisdiction designated by the Underwriters pursuant to the Execution Time, the Company Section 5(g) hereof shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director been issued as of the Company Closing Date, and each of the other persons listed on Schedule IV hereto addressed to the Representativesno proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of SkaddenWeil, Arps, Slate, Xxxxxxx Gotshal & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxxx 000 Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Tishman Speyer Innovation Corp. II), Underwriting Agreement (Tishman Speyer Innovation Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); ) and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the RepresentativesRepresentatives substantially in the form set forth in Exhibit B hereto.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives, substantially in the form set forth in Exhibit C hereto.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, dated the Closing Date, to the effect that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused Ernst & Young LLP (with respect to the Company) and Ernst & Young (with respect to OPI) to have furnished to the Representatives, at the Execution Time and at the Closing Date, accountant’s “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, and in the case of the letters dated as of the Execution Time, substantially in the form of Exhibit D and Exhibit E hereto, respectively.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives.
(j) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Fund, the Manager and the Selling Stockholders Subadviser contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 5 hereof, to the accuracy of the statements of the Company Fund, the Manager and the Selling Stockholders Subadviser made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund, the Manager or the Subadviser of its their obligations hereunder or to the Representatives’ waiver in writing thereof and to the following additional conditions:
(a) The Prospectus, Prospectus and any supplement thereto, supplements thereto have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Fund, the Manager or threatenedthe Subadviser, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders Fund shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersFund, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIits opinion, dated the Closing Date, Date and addressed to the Representatives, substantially in the form set forth on Exhibit A hereto.
(c) You shall have received on the Closing Date an opinion of in-house counsel for the Manager, dated the Closing Date and addressed to the Representatives, substantially in the form set forth on Exhibit B hereto.
(d) [Reserved]You shall have received on the Closing Date an opinion of in-house counsel for the Subadviser, dated the Closing Date and addressed to the Representatives, substantially in the form set forth on Exhibit C hereto.
(e) The Representatives shall have received from SkaddenWeil, Arps, Slate, Xxxxxxx Gotshal & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, Preliminary Prospectus and the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Fund, the Manager and the Operating Partnership Subadviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company Each of the Fund, the Manager and the Subadviser shall have furnished to the Representatives a certificate certificate, signed, in the case of the CompanyFund and the Manager, signed by the Chief Chairman of the Board or the President or Executive Officer Vice President and the Chief Financial Officer principal financial or accounting officer of each of the CompanyFund and the Manager, as the case may be, and by executive officers in the case of the Operating PartnershipSubadviser, by the Chairman of the Board or the President or Executive Vice President or Director and the principal financial or accounting officer or controller, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the each Preliminary Prospectus and the Prospectus, any amendment amendments or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company and Fund, the Operating Partnership Manager or the Subadviser, as case may be, in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, and each of the Company Closing Date and the Operating Partnership Fund, the Manager or the Subadviser, as the case may be, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate (to the extent not waived in writing by the Representatives);
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of Fund’s, the Company and Manager’s or the Operating PartnershipSubadviser’s knowledge, as the case may be, threatened; and
(iii) since Since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Fund) and since the date of the Prospectus (exclusive of any supplement thereto) (with respect to the certificates of the Manager and the Subadviser), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund, the Manager or the Subadviser, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus.
(g) The Company Fund shall have furnished requested and caused KPMG LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information confirming that it is an independent registered public accounting firm within the meaning of the type customarily included Act and the 1940 Act and the Rules and Regulations and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information statement schedules included or incorporated by reference in the Registration Statement, each Preliminary Prospectus and the Disclosure Package Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Fund) set forth in the Registration Statement, each Preliminary Prospectus and the Prospectus; provided, that including the letter delivered on information set forth under the Closing Date shall use a captions “cut-offSummary of Fund Expenses” in any Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Fund, excluding any questions of legal interpretation. References to each Preliminary Prospectus and the Prospectus in this paragraph (g) include any supplement thereto at the date no more than three business days prior to such dateof the letter.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 8 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsbusiness prospects, businessearnings, business or properties or prospects of the Company Fund, the Manager and its subsidiaries, taken as a wholethe Subadviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Registration Statement, each Preliminary Prospectus and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package each Preliminary Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
(li) Subsequent The Manager shall deliver to each of the other parties to the Execution Time, (i) there shall not have been any decrease in the rating of any Fee Agreements copies of the Company’s or Fee Agreements, executed by the Operating Partnership’s debt securities Manager and dated the Effective Date, together with reproduced copies of such agreements executed by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) the Manager for each of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesother parties thereto.
(mj) The Securities shall have been listed and admitted and authorized for trading on the Exchange, and satisfactory evidence of such listing shall have been provided to the Representatives.
(k) Prior to the Closing Date, the CompanyFund, the Operating Partnership Manager and the Selling Stockholders Subadviser shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nl) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders Fund in writing or by telephone or facsimile confirmed in writing. .
(m) The documents required to be delivered by this Section 7 8 shall be delivered at the office of SkaddenWeil, Arps, Slate, Xxxxxxx Gotshal & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxxx 000 Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (ClearBridge Energy MLP Fund Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to Section 4 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxxx Lovells US Mayer, Brown, Xxxx & Maw LLP, U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives.Representative, to the effect set forth in Annex I hereto;
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the Selling StockholdersCompany, to shall have furnished to the Representatives Representative their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives.Representative, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex II;
(d) [Reserved].
(e) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(e) The Representative shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the President and Chief Executive Officer and the Executive Vice-President Corporate Development and Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageCanadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:Agreement;
(iii) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the knowledge of Company’s knowledge, instituted or threatened by the Company and Reviewing Authority or the Operating Partnership, threatened; andCommission;
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Execution Time, and the Prospectus (exclusive of any supplement thereto)U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Execution Time, and the U.S. Final Prospectus, as amended or supplemented prior to the Execution Time; and
(v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Execution Time and the Closing Date, the Representative shall have received from KPMG LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter or letters for each of the other 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 in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus;
(exclusive h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Execution Time, the Canadian Final Prospectus as amended or supplemented prior to the Execution Time, the U.S. Final Prospectus as amended or supplemented prior to the Execution Time or any amendment Issuer Free Writing Prospectus, there shall not have been (i) any change or supplement theretodecrease specified in the letter or letters referred to in paragraph (g) of this Section 5 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 Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package Canadian Final Prospectus, the U.S. Final Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).Issuer Free Writing Prospectus;
(li) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in Section 3(a)(62) any such rating or of a possible change in any such rating that does not indicate the direction of the Exchange Act), and possible change;
(iij) no such organization shall have publicly announced that it If the Registration Statement or an offering of Securities has under surveillance or been filed with the NASD for review, the NASD shall not have raised any objection with possible negative implications, its ratings of any respect to the fairness and reasonableness of the Company’s debt securities.underwriting terms and arrangements;
(mk) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 5 shall be delivered at the office of Skaddenthe Company, ArpsAttention: Corporate Finance Law Department, Slate450 – 1st Street S.W., Xxxxxxx & Xxxx LLPCalgary, counsel for the UnderwritersAlberta, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, T2P 5H1 on the Closing DateDate or such other place as the Representative shall so instruct.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date pursuant to Section 4 hereof(including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of opinions, certificates or letters furnished to you or to Xxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx & Xxxxx, P.A., counsel for the Company and the Selling Stockholders made in any certificates Underwriters, pursuant to the provisions hereof, to the performance by the Company in all material respects of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no a. No stop order suspending the effectiveness of the Registration Statement or any notice objecting Statement, as amended from time to its use time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed with the Commission within the time period prescribed by the Commission.
(b) b. The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in Underwriters the form attached hereto as Annex I, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, of Xxxx X. Xxxxx, Esq., Vice President and addressed Corporate Counsel for the Company, in substantially the form attached as EXHIBIT A hereto.
c. The Company shall have furnished to the RepresentativesUnderwriters the opinion, dated the Closing Date, of Stroock & Stroock & Xxxxx LLP, counsel for the Company, in substantially the form attached as EXHIBIT B hereto.
(d) [Reserved].
(e) The Representatives d. All proceedings taken in connection with the sale of the Notes as herein contemplated shall have received from Skadden, Arps, Slate, be reasonably satisfactory in form and substance to you and to Xxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx & Xxxx LLPXxxxx, P.A., counsel for the Underwriters, and the Underwriters shall have received from counsel for the Underwriters such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) e. The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Executive Officer or a Senior or Executive Vice President and the Chief Financial Officer principal financial or accounting officer or Treasurer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and thatthat to the best of their knowledge:
(i) i. the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) . no stop order suspending the effectiveness of the Registration Statement, as amended, and no order directed at any document incorporated by reference in the Registration Statement or the Final Prospectus or any notice objecting to its use amendment or supplement thereto has been issued issued, and no proceedings for that purpose have been instituted or threatened or, to the knowledge best of the Company and Company's knowledge, are contemplated by the Operating Partnership, threatenedCommission; and
(iii) . since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), management, net worth, or results of operations, business, properties or prospects operations of the Company and its subsidiaries, taken considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Final Prospectus.
f. KPMG Peat Marwick LLP shall have furnished to the Underwriters a letter or letters (which may refer to letters previously delivered to one or more of the Underwriters), dated the date hereof, in form and substance satisfactory to the Underwriters, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
i. They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
ii. In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement and Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the regulations thereunder with respect to registration statements on Form S-3 and the Exchange Act and the regulations thereunder.
iii. On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(1) Reading the minutes of the meetings of the shareholders, the board of directors, executive committee and audit committee of the Company and the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter; and
(2) Making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention as a result of the foregoing procedures that caused them to believe that:
(a) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference in the Registration Statement and the Prospectus or (exclusive ii) for the period from the date of the latest available financial data to a specified date not more than five business days prior to the delivery of such letter, there was any amendment change in the capital stock or supplement theretothe long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and the subsidiaries on a consolidated basis, except in all instances for changes or decreases which the Registration Statement and Prospectus discloses have occurred or may occur, or KPMG Peat Marwick LLP shall state any specific changes or decreases.
iv. The letter shall also state that KPMG Peat Marwick LLP has carried out certain other specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included or incorporated by reference in the Registration Statement and Prospectus and which are specified by the Underwriters and agreed to by KPMG Peat Marwick LLP, and has found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and its subsidiaries identified in such letter. In addition, on the Closing Date, KPMG Peat Marwick LLP shall have furnished to the Underwriters a letter or letters, dated the date of this Agreement, in form and substance satisfactory to the Underwriters, to the effect set forth in this paragraph (f) and in SCHEDULE I hereto.
g. Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 5 or (ii) any change, in or affecting the earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesUnderwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Final Prospectus.
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) h. Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Underwriters and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile transmission confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bi) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion opinion, dated the Closing Date and letter substantially addressed to the Representatives in the form attached hereto as Annex IExhibit A.
(ii) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company, to have furnished to the Representatives their letter, dated the Closing Date and addressed to the Representatives., with respect to the content of the Disclosure Package and the Registration Statement in the form attached hereto as Exhibit B.
(ciii) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxx van der Vaart, counsel Global General Counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially her opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.Exhibit C.
(d) [Reserved].
(ec) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer of the Company or any Executive Vice President or Senior Vice President, and the Chief Financial Officer or Chief Accounting Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the SecuritiesNotes, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ge) The Company shall have furnished requested and caused PricewaterhouseCoopers LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements relating to the Company and its subsidiaries, and certain financial information included contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter letters delivered on the date of this Agreement and on the Closing Date Date, as the case may be, shall use a “cut-off” date no more than three business days prior to such datethe date of this Agreement or the Closing Date, as the case may be.
(jf) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)[Reserved.]
(kg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(lh) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in for purposes of Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(mj) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing DateDate or as otherwise specified in Section 6.
Appears in 1 contract
Samples: Underwriting Agreement (Laboratory Corp of America Holdings)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, you shall have requested received:
(1) An opinion and caused negative assurance letter, dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, in form reasonably satisfactory to you and your counsel substantially in the form of Exhibit A hereto.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for the Company WTC, individually, and the Operating Partnershipas Subordination Agent, Trustee and Loan Trustee, in form and substance reasonably satisfactory to have furnished you and your counsel and substantially to the Representatives their opinion and letter substantially effect set forth in the form attached hereto as Annex I, dated the Closing Date and addressed to the RepresentativesExhibit B hereto.
(c3) The Selling Stockholders shall have requested An opinion, dated as of the Closing Date, from (i) Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel for the Liquidity Provider, and caused (ii) Xx Xxxxxxx Xxxxxxx & Xxxxxxxx Brocas Xxxxxx X.X.X.X.X., special French counsel for the Liquidity Provider, each in form and substance satisfactory to you and your counsel, substantially to the effect set forth in Exhibits C-1 and C-2 hereto, respectively.
(4) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx LLP, counsel for the Selling StockholdersWTNA, as Escrow Agent, in form and substance satisfactory to have furnished you and your counsel, substantially to the Representatives their opinion substantially effect set forth in the form attached hereto as Annex IIExhibit B hereto.
(5) An opinion, dated as of the Closing Date, from (i) Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel for the Depositary, and addressed (ii) Xx Xxxxxxx Brocas Xxxxxx X.X.X.X.X., special French counsel for the Depositary, each in form and substance reasonably satisfactory to you and your counsel and substantially to the Representativeseffect set forth in Exhibit C-1 and C-2 hereto, respectively.
(d6) [Reserved].
(e) The Representatives shall have received An opinion and negative assurance letter, dated as of the Closing Date, from SkaddenMilbank, ArpsTweed, Slate, Xxxxxxx Xxxxxx & Xxxx XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed including to the Representativeseffect that the opinions delivered pursuant to subsections (b)(1) through (b)(5) of this Section 4 appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by you and with respect to the issuance and sale of the SecuritiesCertificates, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives you may reasonably require.
(c) At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and the Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the Operating Partnership earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives received a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that there has been no such material adverse change and to the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) effect that the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time.
(d) Subsequent to the execution and each delivery of the Company this Agreement and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
Time, neither Fitch Ratings, Inc. (ii“Fitch”) no stop order suspending nor Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business (“S&P”) shall have downgraded the effectiveness rating accorded any of the Registration Statement Company’s securities (except for any pass through certificates) or announced that any notice objecting probable downgrading of such rating is about to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference occur in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)near future.
(ge) The Company Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of received from Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided, that .
(f) Promptly after the letter delivered on execution of this Agreement and also at the Closing Date Time, the Underwriters shall use have received from KPMG LLP a letter or letters, dated as of the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “cut-offcomfort letters” date no more than three business days prior to underwriters with respect to certain financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(g) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facilities, the Trust Agreements, the Escrow Agreements, the Deposit Agreements and the Note Purchase Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and you shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such dateeffect.
(h) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(i) The Class A Certificates and the Class B Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 1 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the The Company shall have furnished to you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representatives a letter substantially purpose of enabling such counsel to pass upon the matters referred to in subsection (b)(6) of this Section 4 and in order to evidence the form accuracy and completeness of Exhibit A hereto from each officer and director any of the representations, warranties or statements, the performance of any covenant by the Company and each of theretofore to be performed, or the other persons listed on Schedule IV hereto addressed to the Representatives. If compliance with any of the conditions herein contained. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to you and your counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "PROCEDURES LETTER"), dated the date of this Agreement of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, JPMorgan Chase or X.X. Xxxxxx Xxxxx & Co. which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, JPMorgan Chase or X.X. Xxxxxx Xxxxx & Co. on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to certain matters relating to the treatment of the transfer of the Receivables from the Bank to the Trust by the Federal Deposit Insurance Corporation and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesNotes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipBank, dated the Closing Date, Date and reasonably satisfactory in form and to the effect (a) that under current law the signers of such certificate have carefully examined Notes will be characterized as debt, and the Registration StatementTrust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the qualifications set forth therein, the Disclosure Package, statements made in the Prospectus Supplement under the caption "Material Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal tax law and any amendment regulations or supplement legal conclusions with respect thereto, as well as each electronic road show used in connection with the offering constitute accurate summaries of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIUnited States federal income tax matters described therein.
(h) Each Selling Stockholder The Representative shall have furnished received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Representatives a certificate of Owner Trustee, and such other counsel reasonably satisfactory to the Selling StockholderRepresentative and its counsel, dated the Closing Date, Date and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel Representative, with respect to such matters as are customary for the Underwriterstype of transaction contemplated by this Agreement.
(i) The Class A-1 Notes shall have been rated "A-1+" by Standard & Poor's, this Agreement "P-1" by Xxxxx'x and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date "F1+" by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writingFitch. The documents required to be delivered Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been rated "AAA" by this Section 7 Standard & Poor's, "Aaa" by Xxxxx'x and "AAA" by Fitch. The Certificates shall be delivered at the office of Skaddenhave been rated "A" by Standard & Xxxx'x, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date"X0" by Xxxxx'x and "A" by Fitch.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Auto Owner Trust 2002-A)
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Certificates will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein, on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of _____________ and _____________ verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as execution and delivery of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)this Agreement, there shall not have been occurred (i) any change, or any development involving a prospective change, in or affecting particularly the condition (financial business or otherwise), results of operations, business, properties or prospects of the Company and its subsidiariesBank, taken as a whole, whether The Chase Manhattan Bank or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which isThe Chase Manhattan Corporation which, in the sole reasonable judgment of the RepresentativesRepresentative, so material and adverse as to make materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to proceed with market the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and Certificates; (ii) no any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such organization shall have publicly announced that it has under surveillance exchange, or review, with possible negative implications, its ratings any suspension of trading of any securities of the Company’s debt securities.
(m) Prior to the Closing DateBank, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At The Chase Manhattan Bank or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.J.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company Company, BPG Subsidiary, the Operating Partnership and the Operating PartnershipSelling Stockholders, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date Date, and addressed to the Representatives.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Maryland counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Company, BPG Subsidiary and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of BPG Subsidiary and the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company Company, BPG Subsidiary and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company Company, BPG Subsidiary and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company Company, BPG Subsidiary and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, Agreement and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, BPG Subsidiary, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Brixmor Operating Partnership LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Fenwick & West LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their written opinion and letter substantially in the form attached hereto negative assurance letter, each dated as Annex I, dated of the Closing Date Date, in form and addressed substance satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto dated as Annex II, dated of the Closing Date, Date and addressed to the Representatives, in substance and form satisfactory to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from SkaddenXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLPP.C., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer chief executive officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have requested and required PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ comfort letters to underwriters with respect to the financial statements and certain financial information contained in the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a cut-off date no more than two Business Days prior to such Closing Date.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mh) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ni) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company Company, each Selling Stockholder and each securityholders of the Company representing substantially all of the Company’s securities.
(l) The chief financial officer of the Company shall have furnished to the Representatives a certificate as to the accuracy of certain financial and other persons listed on Schedule IV hereto addressed information included in the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, dated as of Closing Date, in form and substance reasonably acceptable to the Representatives.
(m) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of SkaddenXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLPP.C., counsel for the Underwriters, at 000 Xxxx Xxxxx Xxxxxx, Xxx Xxxx Xxxx, XX 00000Xxxx Xxxx, Xxxxxxxxxx, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Upwork Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers and the Selling Stockholders Guarantors contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders Vanguard Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Vanguard Parties of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereof, and any other material required to be filed by the Company Issuers pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; , and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Issuers shall have requested and caused Xxxxx Lovells US LLPXxxxxx & Xxxxxx L.L.P., counsel for the Company and the Operating PartnershipIssuers, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., substantially in the form attached hereto as Exhibit B-1:
(c) The Selling Stockholders Issuers shall have requested and caused Xxxxxxx Xxxxxxx Xxxxx, Tarrant & Xxxxxxxx Xxxxx LLP, counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.Exhibit B-2:
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company Issuers shall have furnished to the Representatives a certificate of the CompanyIssuers, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating PartnershipIssuers, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, each Issuer Free Writing Prospectus, the Final Prospectus and any amendment supplements or supplement theretoamendments to any of the foregoing, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company Issuers and the Operating Partnership Guarantors in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, and each of the Company Closing Date and the Operating Partnership has Issuers and the Guarantors have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipIssuers’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company Issuers and its their respective subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused BDO USA, LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that it is an independent registered public accounting firm with respect to the Issuers within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and the PCAOB and stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that it is an independent registered public accounting firm with respect to the Issuers within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and the PCAOB and stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(f) hereof 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 Issuers and their respective subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(li) The Company shall have requested and caused D&M to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated as of the Execution Time and the Closing Date, in form and substance satisfactory to the Representatives, covering certain matters relating to information about the reserves of the Company presented in the Disclosure Package (with respect to a letter dated as of the Execution Time) or the Final Prospectus (with respect to letters dated the Closing Date).
(j) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s Issuers’ debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62that term is used by the Commission for purposes of Rule 15c3-1(c)(2)(vi)(F) of under the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(mk) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Issuers shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nl) At or prior to the Execution TimeClosing Date, the Company Indenture and the Notes shall have furnished to been duly executed and delivered and the Representatives a letter substantially in the form of Exhibit A hereto from each officer Securities shall be eligible for clearance and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representativessettlement through DTC. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 000 Xxxx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, XX Xxxxxxx, Xxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Vanguard Natural Resources, LLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than 9:30 AM on the Business Day following the day on which the public offering price was determined; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLPMilbank, Tweed, Xxxxxx & XxXxxx LLP U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinions, dated the Closing Date and addressed to the Representatives, in the forms set forth on Annex A hereto.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPPayet, Rey, Cauvi Abogados, Peruvian counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives, in the form set forth on Annex B hereto.
(d) [Reserved]The Company shall have requested and caused Lic. Xxxxxxx Xxxxxx G., General Counsel of the Company, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in the form set forth on Annex C hereto.
(e) Cerro Trading Company, Inc. and SPC Investors, L.L.C. shall have requested and caused Cleary, Gottlieb, Xxxxx & Xxxxxxxx LLP, Xxxx X. Xxxxx, Esq., and Xxxxxx X. Xxxx, Esq., to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in the forms set forth on Annexes X-0, X-0 and D-3 hereto.
(f) The Xxxxxx Dodge Entities shall have requested and caused Debevoise & Xxxxxxxx LLP, Loyens & Loeff N.V. and Xxxxxxxxx X. Xxxxxxxx, Esq., to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in the forms set forth on Annexes E-1, E-2 and E-3 hereto.
(g) The Representatives shall have received from Skadden(i) Cravath, ArpsSwaine & Xxxxx LLP, SlateNew York counsel for the Underwriters, (ii) Estudio Xxxx Echecopar Xxxxxx, Peruvian counsel for the Underwriters, and (iii) Xxxxx, Xxxxxxx & Xxxx LLPX Xxxxxxx, S.C., Mexican counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fh) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, any supplements to the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnershipsigners’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(hi) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholdercertificate, signed on its behalf by an officer, director or member, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate has examined the Selling Stockholder Information included in the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ij) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall caused PricewaterhouseCoopers S.C. to have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information confirming that they are independent accountants within the meaning of the type customarily included Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States) (PCAOB), and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited combined consolidated financial statements and certain financial information statement schedules included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus; provided, that Final Prospectus and reported on by them comply as to form in all material respects with the letter delivered applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the Closing Date shall use basis of a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions reading of the Tax Equity latest unaudited financial statements made available by the Company and Fiscal Responsibility Act its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of 1982 significance with respect to the transactions herein contemplatedcomments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the executive, compensation and audit committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to March 31, 2005, there was any change, at a specified date not more than five days prior to the date of the letter, in the long-term debt, or decrease in total assets or stockholders’ equity of the combined company as compared with the amounts shown on the March 31, 2005, unaudited balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from April 1, 2005, to such Selling Stockholder will deliver specified date there were any decreases, as compared with the corresponding period in the preceding year, in consolidated total net sales, net earnings, operating income, or basic and diluted net earnings per share, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(2) the unaudited income statement for the three-month periods ended March 31, 2005 and 2004 and balance sheet data as of March 31, 2005 and 2004 included in the Final Prospectus under the heading “Recent Developments” do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures, requested by the Representatives, as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus that has previously been identified to you prior agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to or the Final Prospectus in this paragraph (j) include any supplement thereto at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)date of the letter.
(k) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, and stating in effect that:
(i) in their opinion the audited consolidated financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) they have performed certain other specified procedures, requested by the Representatives, as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus that has previously been identified to you agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (k) include any supplement thereto at the date of the letter.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraphs (j) or (k) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, results of operations, business, business or properties or prospects of the Company and its subsidiaries, taken considered as a wholeone enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(o) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer stockholder and director of the Company and each of the other persons individual listed on in Schedule IV hereto hereto, addressed to the Representatives.
(p) At the Execution Time, each Selling Stockholder shall have furnished to the Representatives a letter substantially in the form of Exhibit B hereto, addressed to the Representatives.
(q) The NASD shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of SkaddenCravath, Arps, Slate, Xxxxxxx Swaine & Xxxx Xxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Southern Peru Copper Corp/)
Conditions to the Obligations of the Underwriters. The obligations of the Selling Stockholders to sell the Firm Shares and the obligations of the Company to sell any Additional Shares, respectively, to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as that are not qualified by materiality and to the accuracy of the Execution Timerepresentations and warranties of the Company and the Selling Stockholders contained herein that are qualified by materiality at the date hereof, the Closing Date pursuant to Section 4 hereofDate, and any Option Closing Date, if applicable, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished furnish to the Representatives Underwriters their opinion and letter negative assurance statement, each dated the Closing Date and, if applicable, any Option Closing Date, and addressed to the Underwriters and substantially in the form attached hereto as Annex Iof Exhibits B and C hereto; and (ii) Mxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary of the Company, to furnish to the Underwriters his opinion dated the Closing Date and and, if applicable, any Option Closing Date, addressed to the RepresentativesUnderwriters and substantially in the form of Exhibit D hereto.
(cb) The Selling Stockholders shall have requested and caused Xxxxxxx (i) Sxxxxxx Xxxxxxx & Xxxxxxxx Bxxxxxxx LLP, counsel for Chart Holdings and the Management Selling StockholdersStockholders relating to certain matters under the New York Uniform Commercial Code, to have furnished furnish to the Representatives Underwriters their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and if applicable, the Option Closing Date, and addressed to the RepresentativesUnderwriters and substantially in the form of Exhibit E hereto; and (ii) Mxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary of the Company, to furnish to the Underwriters his opinion on certain matters in respect of the Management Selling Stockholders dated the Closing Date and, if applicable, any Option Closing Date, addressed to the Underwriters and substantially in the form of Exhibit F hereto.
(d) [Reserved].
(ec) The Representatives Underwriters shall have received from Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and, if applicable, any Option Closing Date, and addressed to the RepresentativesUnderwriters, with respect to the issuance offer and sale of the SecuritiesShares, the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Prospectus (together with any supplement thereto) and Registration Statement and other related matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by (x) the Chief Executive Officer or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date and, if applicable, any Option Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Prospectus and Registration Statement, any amendment or supplement theretoto the Time of Sale Prospectus, as well as each electronic road show used in connection with the offering of the Securities, Prospectus and Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement that are not qualified by materiality are true and correct in all material respects, and the representations and warranties of the Company in this Agreement that are qualified by materiality are true and correct, in each case, on and as of the Closing Date or any Option Closing Date, as the case may be, with the same effect as if made on the Closing Date, or such dateOption Closing Date, as the case may be, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement , or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted orOption Closing Date, to as the knowledge of the Company and the Operating Partnership, threatenedcase may be; and
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Time of Sale Prospectus and the Prospectus Registration Statement (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition, except financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in or contemplated in the Registration Statement, the Disclosure Package Time of Sale Prospectus and the Prospectus (exclusive of any supplement theretoamendments or supplements thereto subsequent to the date of this Agreement).
(gi) The Company Chart Holdings shall have furnished to the Representatives Underwriters a certificate of the Companycertificate, signed by the Chief Financial Officer an executive officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling StockholderChart Holdings, dated the Closing Date, and addressed to the Representatives Date to the effect that:
(i) that the representations and warranties of the Selling Stockholder it has made in this Agreement that are not qualified by materiality are true and correct in all material respects and the representations and warranties it has made that are qualified by materiality are true and correct on and as of the Closing Date, Date with the same effect as if made on such datethe Closing Date and it has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
and (ii) each Management Selling Stockholder shall have furnished to the Underwriters a certificate, each dated the Closing Date to the effect that the representations and warranties of such Management Selling Stockholder in this Agreement that are not qualified by materiality are true and correct in all material respects and the representations and warranties of such Management Selling Stockholder that are qualified by materiality are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and such Management Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(if) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP The Management Selling Stockholders shall have furnished to the Representatives, Underwriters a Custody Agreement substantially in the form of Exhibit G hereto.
(g) At the date hereof and at the request of Closing Date, the Company, Company shall have requested and caused Ernst & Young LLP to furnish to the Underwriters a “comfort” letter, dated as of the respective dates date hereof, and a bring-down “comfort” letter (i) on and dated as of delivery thereof the Closing Date and addressed to the Underwriters(ii) if applicable, on and dated as of any Option Closing Date, each in form and substance satisfactory to the RepresentativesManagers, containing statements and information confirming that it is an independent registered public accounting firm within the meaning of the type customarily included in accountants’ “comfort letters” to underwriters Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and certain other financial and accounting information included or incorporated by reference contained in the Time of Sale Prospectus, the Prospectus and Registration Statement, the Disclosure Package and the Prospectus; provided, provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the date of such dateletter. All references in this Section 9(g) to the Time of Sale Prospectus, the Prospectus and Registration Statement include any amendment or supplement thereto at the date of the applicable letter.
(jh) In order to document The “lock-up” agreements, each substantially in the Underwriters’ compliance with the reporting form of Exhibit A hereto, between you and withholding provisions each executive officer and director of the Tax Equity Company and Fiscal Responsibility Act the Management Selling Stockholders, each listed on Schedule V hereto, relating to sales and certain other dispositions of 1982 with respect to the transactions herein contemplatedshares of Common Stock or certain other securities, such Selling Stockholder will deliver delivered to you prior to on or at before the date hereof, shall be in full force and effect on the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)Date.
(ki) Subsequent to the Execution Time execution and delivery of this Agreement and prior to the Closing Date or, if earlierapplicable, the dates as of which information is given in the Registration Statement any Option Closing Date:
(exclusive of any amendment thereofi) and the Prospectus (exclusive of any supplement thereto), 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 Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition (condition, financial or otherwise), results of operationsor in the earnings, business, properties or prospects results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as that set forth in or contemplated in the Disclosure Package and the Time of Sale Prospectus (exclusive of any amendment amendments or supplement theretosupplements thereto subsequent to the date of this Agreement) the effect of which isthat, in the sole judgment of the Representativesyour judgment, so is material and adverse as and that makes it, in your judgment, impracticable to make it impractical or inadvisable to proceed with market the offering or delivery Shares on the terms and in the manner contemplated in the Time of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Sale Prospectus.
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Companyor, if applicable, any Option Closing Date, the Operating Partnership and Company and/or the Selling Stockholders shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(nk) At or prior to The Shares shall have been listed on the Execution TimeNasdaq Global Market.
(l) On the Closing Date, and, if applicable, any Option Closing Date, the Company Registration Statement shall be effective, no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission.
(m) No Underwriter shall have furnished to notice of an adverse claim on the Representatives a letter substantially in Shares within the form meaning of Exhibit A hereto from each officer and director Section 8-102 of the Company and each of the other persons listed on Schedule IV hereto addressed to the RepresentativesUCC. If any of the conditions specified in this Section 7 9 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement Section 9 shall not be reasonably satisfactory in form and substance to the Representatives Managers and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date or, if applicable, any Option Closing Date (solely with respect to the obligations of the Underwriters to purchase Additional Shares on such date) by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall 9 will be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date or, if applicable, the Option Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofand any settlement date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxx Xxxx Xxxxxxx Xxxxx Lovells US & Xxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the RepresentativesRepresentative, in the form attached in Annex A hereto.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ge) The Company shall have furnished requested and caused Ernst & Young LLP and Xxxxx Xxxxxxxx LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of Representative, at the Selling StockholderExecution Time, dated at the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties letters, dated respectively as of the Selling Stockholder in this Agreement are true and correct on Execution Time and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateRepresentative.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lg) The Company shall have furnished to the Representative a certificate, dated the Closing Date, and if applicable, any additional settlement date, addressed to the Representative, of its chief financial officer with respect to certain financial data contained in the Registration Statement, the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative.
(h) Prior to the Closing Date, and if applicable, any additional settlement date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section for purposes of Rule 3(a)(62) of under the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(mj) Prior The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestUnderwriters’ participation in same.
(nk) At or prior Prior to the Execution Time, the Company shall have furnished to the Representatives Representative a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company and each of the other persons listed on Schedule IV III hereto addressed to the RepresentativesRepresentative. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(l) On the Closing Date, the Securities shall have been approved for listing on the NASDAQ, subject only to official notice of issuance. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx0000 0xx Xxx, Xxx Xxxx, XX 0000000000 (or such other place as the Representative and the Company may mutually agree upon), on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion letters and letter substantially in the form attached hereto as Annex Inegative assurance letter, dated as of the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx Procter LLP, counsel for the Underwriters, such their opinion or opinionsletter and negative assurance letter, dated as of the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers dated as of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated as of the Closing Date, with respect to certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus in form and substance reasonably satisfactory to the Representatives.
(g) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(h) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, 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 SEC thereunder and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Disclosure Package and the Prospectus.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nk) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx Procter LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Shareholders contained herein in this Agreement as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder under this Agreement and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b)) under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433433 under the Act; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any notice objecting to its their use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx LLP, United States counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their its opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, substantially in the form of Exhibit B hereto.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx Xxxx & Xxxxxxxx LLPXxxxxxx, Cayman Islands counsel for the Selling StockholdersCompany, to have furnished to the Representatives their its opinion dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form attached hereto as Annex IIof Exhibit C hereto.
(d) On or prior to the date the Registration Statement is filed publicly with the Commission for the first time (the “Launch Date”), the Company shall have requested and caused Xxx Xx Law Offices, PRC counsel for the Company, to have furnished to the Representatives a copy of its opinion dated the Launch Date, substantially in the form of Exhibit D hereto, together with a reliance letter addressed to the Representatives on behalf of the Underwriters relating thereto.
(e) The Company shall have requested and caused Xxx Xx Law Offices, PRC counsel for the Company, to have furnished to the Representatives a copy of its opinion dated the Closing Date, substantially in the form of Exhibit E hereto, together with a reliance letter addressed to the Representatives on behalf of the Underwriters relating thereto.
(f) The Depositary shall have requested and caused Xxxxxxxx Chance LLP, counsel for the Depositary, to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives.Representatives on behalf of the Underwriters, substantially in the form of Exhibit F hereto
(dg) [Reserved].The Selling Shareholders shall have requested and caused Xxxxxx & Xxxxxxx LLP, U.S. counsel for the Selling Shareholders, to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form of Exhibit G.
(eh) Each of the Selling Shareholders shall have requested and caused its local counsel to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form of Exhibit H.
(i) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Shareholder shall have furnished to such counsel Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP such documents as they request it requests for the purpose of enabling them it to pass upon such matters.
(fj) The Representatives shall have received from King and Wood, PRC counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, with respect to certain issues under PRC law relating to the transactions contemplated hereunder and other related matters as the Representatives may reasonably require, and the Company and each Selling Shareholder shall have furnished to King and Wood such documents as it requests for the purpose of enabling it to pass upon such matters.
(k) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer chairman of the board or the chief executive officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the ADR Registration Statement or the Registration Statement or of any notice objecting to its their use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(gl) The Company Each Selling Shareholder shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chief Financial Officer a duly authorized representative of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each such Selling Stockholder shall have furnished to the Representatives a certificate of the Selling StockholderShareholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(im) On The Company shall have requested and caused Deloitte Touche & Tohmatsu CPA Ltd. to have furnished to the date of this Agreement, Representatives at the Execution Time and on at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representativesletters, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of to the type customarily included effect set forth in accountants’ “comfort letters” to underwriters Exhibit I, with respect to the financial statements and certain financial information included or incorporated by reference contained in the Preliminary Prospectus dated [•], the Registration Statement, the Disclosure Package and the Prospectus; provided, provided that the letter delivered on the Closing Date shall use a “cut-offoff date” not earlier than the date no more than three business days prior to such datehereof.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kn) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (m) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lo) Subsequent The Company and the Depositary shall have executed and delivered the Deposit Agreement in form and substance satisfactory to the Execution Time, (i) there Representatives and the Deposit Agreement shall not have been any decrease be in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), full force and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitieseffect.
(mp) The Depositary shall have furnished or caused to be furnished to the Representatives certificates satisfactory to the Representatives evidencing the deposit with the Custodian of the Underlying Shares in respect of which ADSs to be purchased by the Underwriters on such Closing Date are to be issued, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives reasonably request.
(q) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Shareholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nr) At or prior The ADSs shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(s) The FINRA shall have confirmed that it has not raised any objection with respect to the Execution Timefairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby.
(t) There shall not be any adverse legislative or regulatory developments related to the M&A Rules and Related Clarifications which in the reasonable judgment of the Representatives would make it inadvisable to proceed with the public offering or the delivery of the Shares and the ADSs on the terms and in the manner contemplated in this Agreement (including any such development that results in PRC counsel to the Company not being able to confirm, on the Closing Date, its opinion dated the Launch Date).
(u) The Lock-up Agreements shall be in full force and effect on the Closing Date.
(v) The Controlling Shareholder shall have furnished to the Representatives a letter substantially certificate, signed by a duly authorized representative of such Controlling Shareholder, dated the Closing Date, to the effect that the signer[s] of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of such Controlling Shareholder in the form of Exhibit A hereto from each officer this Agreement are true and director correct in all material respects on and as of the Company and each of the other persons listed on Schedule IV hereto addressed Closing Date to the Representativessame effect as if made on the Closing Date. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder under this Agreement may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office offices of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx XxxxxxBank of China Tower, Xxx Xxxx39/F, XX 00000One Garden Road, Central, Hong Kong, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (VanceInfo Technologies Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLPXxXxxxxxx, Will & Xxxxx, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Inegative assurance letter, each dated the Closing Date and addressed to the Representatives, in the forms and substance satisfactory to the Representatives.
(c) The One or more of the Selling Stockholders shall have requested and caused Xxxxxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, LLP counsel for the such Selling Stockholders, to have furnished to the Representatives their opinion substantially dated the Closing Date and addressed to the Representatives, in the form attached hereto as Annex II, dated the Closing Date, and addressed substance satisfactory to the Representatives.
(d) [Reserved]One or more of the Selling Shareholders shall have requested and caused Walkers, counsel for such Selling Stockholders to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in the forms and substance satisfactory to the Representatives.
(e) One or more of the Selling Shareholders shall have requested and caused its General Counsel for such Selling Stockholders to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in the form and substance satisfactory to the Representatives.
(f) One or more of the Selling Shareholders shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for such Selling Stockholders to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in the form and substance satisfactory to the Representatives.
(g) The Representatives shall have received from SkaddenXxxxxx, ArpsXxxx & Xxxxxxxx, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fh) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(hi) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed on behalf of the such Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(ithat the signer(s) of such certificate have carefully examined the Selling Stockholder Information in the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ij) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP The Company shall have requested and caused to be furnished to the Representatives, at the request on each of the Companydate hereof, the Closing Date and, if applicable, the Option Closing Date, a letter, letter dated the respective dates of delivery thereof and addressed to date hereof, the UnderwritersClosing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives, of each of (i) Ernst & Young LLP and (ii) KPMG LLP (on behalf of itself and as successor to Xxxxxxxxx Xxxx), confirming that each is an independent registered public accounting firm with respect to the Company and each of their consolidated subsidiaries within the meaning of the Act, the Exchange Act and the respective rules and regulations adopted by the Commission thereunder and the PCAOB and stating that in their each of their opinion the financial statements and schedules examined by them and included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus comply in form in all material respects with the applicable accounting requirements of the Act and the related Rules and Regulations; and containing such other statements and information of the type customarily as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information included or incorporated by reference contained in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section for purposes of Rule 3(a)(62) of under the Exchange Act), and (ii) no or any notice given by such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(ml) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nm) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A Schedule IV hereto (a “Lock-Up Agreement”) from each officer and director of the Company, the Selling Stockholders and such stockholders as agreed to by the parties as of the Execution Time addressed to the Representatives; and at the Execution Time, the Company and shall have used its reasonable efforts to obtain executed Lock-Up Agreements from each of the other persons listed on Schedule IV hereto addressed stockholders of the Company who is a party to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Stockholders Agreement and all obligations of shall continue to use its reasonable efforts to obtain such executed Lock-Up Agreements after the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing DateExecution Time.
Appears in 1 contract
Samples: Underwriting Agreement (Del Taco Restaurants, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Selling Stockholders to sell the Firm Shares and the obligations of the Company to sell any Additional Shares, respectively, to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as that are not qualified by materiality and to the accuracy of the Execution Timerepresentations and warranties of the Company and the Selling Stockholders contained herein that are qualified by materiality at the date hereof, the Closing Date pursuant to Section 4 hereofDate, and any Option Closing Date, if applicable, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished furnish to the Representatives Underwriters their opinion and letter negative assurance statement, each dated the Closing Date and, if applicable, any Option Closing Date, and addressed to the Underwriters and substantially in the form attached hereto as Annex Iof Exhibits B and C hereto; and (ii) Mxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary of the Company, to furnish to the Underwriters his opinion dated the Closing Date and and, if applicable, any Option Closing Date, addressed to the RepresentativesUnderwriters and substantially in the form of Exhibit D hereto.
(cb) The Selling Stockholders shall have requested and caused Xxxxxxx (i) Sxxxxxx Xxxxxxx & Xxxxxxxx Bxxxxxxx LLP, counsel for Chart Holdings and the Management Selling StockholdersStockholders relating to certain matters under the New York Uniform Commercial Code, to have furnished furnish to the Representatives Underwriters their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and if applicable, the Option Closing Date, and addressed to the RepresentativesUnderwriters and substantially in the form of Exhibit B hereto; and (ii) Mxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary of the Company, to furnish to the Underwriters his opinion on certain matters in respect of the Management Selling Stockholders dated the Closing Date and, if applicable, any Option Closing Date, addressed to the Underwriters and substantially in the form of Exhibit D hereto.
(d) [Reserved].
(ec) The Representatives Underwriters shall have received from Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and, if applicable, any Option Closing Date, and addressed to the RepresentativesUnderwriters, with respect to the issuance offer and sale of the SecuritiesShares, the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Prospectus (together with any supplement thereto) and Registration Statement and other related matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by (x) the Chief Executive Officer or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date and, if applicable, any Option Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Prospectus and Registration Statement, any amendment or supplement theretoto the Time of Sale Prospectus, as well as each electronic road show used in connection with the offering of the Securities, Prospectus and Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement that are not qualified by materiality are true and correct in all material respects, and the representations and warranties of the Company in this Agreement that are qualified by materiality are true and correct, in each case, on and as of the Closing Date or any Option Closing Date, as the case may be, with the same effect as if made on the Closing Date, or such dateOption Closing Date, as the case may be, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement , or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted orOption Closing Date, to as the knowledge of the Company and the Operating Partnership, threatenedcase may be; and
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Time of Sale Prospectus and the Prospectus Registration Statement (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition, except financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in or contemplated in the Registration Statement, the Disclosure Package Time of Sale Prospectus and the Prospectus (exclusive of any supplement theretoamendments or supplements thereto subsequent to the date of this Agreement).
(gi) The Company Chart Holdings shall have furnished to the Representatives Underwriters a certificate of the Companycertificate, signed by the Chief Financial Officer an executive officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling StockholderChart Holdings, dated the Closing Date, and addressed to the Representatives Date to the effect that:
(i) that the representations and warranties of the Selling Stockholder it has made in this Agreement that are not qualified by materiality are true and correct in all material respects and the representations and warranties it has made that are qualified by materiality are true and correct on and as of the Closing Date, Date with the same effect as if made on such datethe Closing Date and it has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
and (ii) each Management Selling Stockholder shall have furnished to the Underwriters a certificate, each dated the Closing Date to the effect that the representations and warranties of such Management Selling Stockholder in this Agreement that are not qualified by materiality are true and correct in all material respects and the representations and warranties of such Management Selling Stockholder that are qualified by materiality are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and such Management Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(if) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP The Management Selling Stockholders shall have furnished to the Representatives, Underwriters a Custody Agreement substantially in the form of Exhibit E hereto.
(g) At the date hereof and at the request of Closing Date, the Company, Company shall have requested and caused Ernst & Young LLP to furnish to the Underwriters a “comfort” letter, dated as of the respective dates date hereof, and a bring-down “comfort” letter (i) on and dated as of delivery thereof the Closing Date and addressed to the Underwriters(ii) if applicable, on and dated as of any Option Closing Date, each in form and substance satisfactory to the RepresentativesManagers, containing statements and information confirming that it is an independent registered public accounting firm within the meaning of the type customarily included in accountants’ “comfort letters” to underwriters Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and certain other financial and accounting information included or incorporated by reference contained in the Time of Sale Prospectus, the Prospectus and Registration Statement, the Disclosure Package and the Prospectus; provided, provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the date of such dateletter. All references in this Section 9(g) to the Time of Sale Prospectus, the Prospectus and Registration Statement include any amendment or supplement thereto at the date of the applicable letter.
(jh) In order to document The “lock-up” agreements, each substantially in the Underwriters’ compliance with the reporting form of Exhibit A hereto, between you and withholding provisions each executive officer and director of the Tax Equity Company and Fiscal Responsibility Act the Management Selling Stockholders, each listed on Schedule V hereto, relating to sales and certain other dispositions of 1982 with respect to the transactions herein contemplatedshares of Common Stock or certain other securities, such Selling Stockholder will deliver delivered to you prior to on or at before the date hereof, shall be in full force and effect on the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)Date.
(ki) Subsequent to the Execution Time execution and delivery of this Agreement and prior to the Closing Date or, if earlierapplicable, the dates as of which information is given in the Registration Statement any Option Closing Date:
(exclusive of any amendment thereofi) and the Prospectus (exclusive of any supplement thereto), 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 Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition (condition, financial or otherwise), results of operationsor in the earnings, business, properties or prospects results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as that set forth in or contemplated in the Disclosure Package and the Time of Sale Prospectus (exclusive of any amendment amendments or supplement theretosupplements thereto subsequent to the date of this Agreement) the effect of which isthat, in the sole judgment of the Representativesyour judgment, so is material and adverse as and that makes it, in your judgment, impracticable to make it impractical or inadvisable to proceed with market the offering or delivery Shares on the terms and in the manner contemplated in the Time of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Sale Prospectus.
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Companyor, if applicable, any Option Closing Date, the Operating Partnership and Company and/or the Selling Stockholders shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(nk) At or prior to The Shares shall have been listed on the Execution TimeNasdaq Global Market.
(l) On the Closing Date, and, if applicable, any Option Closing Date, the Company Registration Statement shall be effective, no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission.
(m) No Underwriter shall have furnished to notice of an adverse claim on the Representatives a letter substantially in Shares within the form meaning of Exhibit A hereto from each officer and director Section 8-102 of the Company and each of the other persons listed on Schedule IV hereto addressed to the RepresentativesUCC. If any of the conditions specified in this Section 7 9 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement Section 9 shall not be reasonably satisfactory in form and substance to the Representatives Managers and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date or, if applicable, any Option Closing Date (solely with respect to the obligations of the Underwriters to purchase Additional Shares on such date) by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall 9 will be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date or, if applicable, the Option Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, JPMorgan Chase or X.X. Xxxxxx Xxxxx & Co. which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, JPMorgan Chase or X.X. Xxxxxx Xxxxx & Co. on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to certain matters relating to the treatment of the transfer of the Receivables from the Bank to the Trust by the Federal Deposit Insurance Corporation and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesNotes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipBank, dated the Closing Date, Date and reasonably satisfactory in form and to the effect (a) that under current law the signers of such certificate have carefully examined Notes will be characterized as debt, and the Registration StatementTrust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the qualifications set forth therein, the Disclosure Package, statements made in the Prospectus Supplement under the caption "Material Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal tax law and any amendment regulations or supplement legal conclusions with respect thereto, as well as each electronic road show used in connection with the offering constitute accurate summaries of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIUnited States federal income tax matters described therein.
(h) Each Selling Stockholder The Representative shall have furnished received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Representatives a certificate of Owner Trustee, and such other counsel reasonably satisfactory to the Selling StockholderRepresentative and its counsel, dated the Closing Date, Date and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel Representative, with respect to such matters as are customary for the Underwriterstype of transaction contemplated by this Agreement.
(i) The Class A-1 Notes shall have been rated "A-1+" by Standard & Poor's, this Agreement "P-1" by Xxxxx'x and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date "F1+" by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writingFitch. The documents required to be delivered Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been rated "AAA" by this Section 7 Standard & Poor's, "Aaa" by Xxxxx'x and "AAA" by Fitch. The Certificates shall be delivered at the office of Skaddenhave been rated "A" by Standard & Xxxx'x, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date"X0" by Xxxxx'x and "A" by Fitch.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Auto Owner Trust 2002-B)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwriters' Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders 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) The If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 12:00 Noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLPfurnished to the Representatives the opinion of Xxxx, Xxxxxxx & Xxxxxxxx, P.C., counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company, Coca-Cola Bottling Co. Affiliated, Inc., Coca-Cola Bottling Company of Mobile, Inc., Coca-Cola Bottling Company of Nashville, Inc., Coca-Cola Bottling Company of Roanoke, Inc., Columbus Coca-Cola Bottling Company, Panama City Coca-Cola Bottling Company, Tennessee Soft Drink Production Company, The Coca-Cola Bottling Company of West Virginia, Inc., Metrolina Bottling Company, COBC, Inc., ECBC, Inc., MOBC, Inc., NABC, Inc., PCBC, Inc., ROBC, Inc., WCBC, Inc., and WVBC, Inc. (individually a "Subsidiary" and collectively the Operating Partnership has complied "Subsidiaries"), is duly incorporated and validly exists as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with all full corporate power and authority to own, lease and operate its properties, and conduct its business as described in the agreements Final Prospectus, and satisfied all is duly qualified to do business as a foreign corporation and is in good standing under the conditions on its part laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, other than jurisdictions, except where the failure so to be performed or satisfied at or prior to the Closing Date;qualify would not have a material adverse effect.
(ii) the Company's 50% owned general partnership, Piedmont Coca-Cola Bottling Partnership ("Piedmont") is duly organized and validly existing under the laws of the State of Delaware, with full power and authority to own, lease and operate its properties, and to conduct its business as described in the Final Prospectus and each of its corporate partners is duly registered and qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction which requires such qualification wherein Piedmont owns or leases material properties or conducts material business, other than jurisdictions, except where the failure so to qualify would not have a material adverse effect.
(iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Subsidiaries and the 50% partnership interest in Piedmont are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iv) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the Securities conform to the description thereof contained in the Final Prospectus; and, if the Securities are to be listed on any securities exchange or automated quotation system, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such securities exchange or automated quotation system and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(v) in the case of an offering of Debt Securities, the Indenture has been duly authorized, executed and delivered, and has been duly qualified under the Trust Indenture Act; the Indenture constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect and by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law); and the Debt Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company, be convertible or exercisable for other securities of the Company in accordance with their terms as set forth in the Final Prospectus, as the case may be, and will be entitled to the benefits of the Indenture; if the Debt Securities are convertible or exercisable into Equity Securities, the shares of Equity Securities issuable upon such conversion or exercise will have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; the outstanding shares of such Equity Securities will have been duly authorized and issued, will be fully paid and nonassessable and will conform to the description thereof contained in the Final Prospectus; and the holders of outstanding capital stock of the Company have no preemptive rights with respect to any of such shares of Equity Securities issuable upon such conversion, except as provided in the Stock Agreement;
(vi) in the case of an offering of Common Stock or Class C Common Stock, the shares of Common Stock or Class C Common Stock have been duly and validly authorized and, when issued and delivered and paid for by the Underwriters pursuant to this agreement, will be fully paid and nonassessable and will conform to the description thereof contained in the Final Prospectus; the Common Stock has been duly authorized for listing, subject to official notice of issuance, on the National Association of Securities Dealers Automated Quotation National Market System; the certificates for the Common Stock or Class C Common Stock are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Common Stock or Class C Common Stock, except as provided in the Stock Agreement.
(vii) in the case of an offering of Preferred Stock, Convertible Preferred Stock or Nonconvertible Preferred Stock, the Company has authorized capital stock as set forth in the Final Prospectus; the shares of Preferred Stock, Convertible Preferred Stock, or Nonconvertible Preferred Stock being delivered at such Closing Date have been duly and validly authorized and, when issued and delivered and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the shares of Preferred Stock, Convertible Preferred Stock, or Nonconvertible Preferred Stock conform to the descriptions thereof contained in the Final Prospectus; and the stockholders of the Company have no preemptive rights with respect to any of such shares of Preferred Stock, Convertible Preferred Stock or Nonconvertible Preferred Stock, except as provided in the Stock Agreement. If the shares of Preferred Stock or Convertible Preferred Stock being delivered at such Closing Date are convertible or exchangeable into Common Stock or other securities (including Securities), such shares of Preferred Stock or Convertible Preferred Stock are, and the Contract Securities, when so issued, delivered and sold, will be, convertible or exchangeable into Common Stock or such other securities in accordance with their terms; the shares of such Common Stock or other securities initially issuable upon conversion or exchange of such shares of Preferred Stock or Convertible Preferred Stock will have been duly authorized and reserved for issuance upon such conversion or exchange and, when issued upon such conversion or exchange, will be duly issued, fully paid and nonassessable; the outstanding shares of such Common Stock have been duly authorized and issued, are fully paid and nonassessable and conform to the description thereof contained in the Final Prospectus;
(viii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or Piedmont, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company, its subsidiaries and Piedmont fairly summarize such matters;
(ix) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and issued, no proceedings for that purpose have been instituted oror threatened, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Registration Statement and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to other than the financial statements and certain other financial and statistical information included or incorporated by reference contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the Registration Statementapplicable requirements of the Act, the Disclosure Package Exchange Act and the ProspectusTrust Indenture Act and the respective rules thereunder; provided, and such counsel has no reason to believe that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Effective Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(exclusive of x) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not Delayed Delivery Contracts have been any changeduly authorized, executed and delivered by the Company and are valid and binding agreements of the Company enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or any development involving a prospective change, in other laws relating to or affecting the condition enforcement of creditors' rights generally from time to time in effect and by general equitable principles, including, without limitation, concepts of materiality, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law);
(financial xii) no consent, approval, authorization or otherwise), results order of operations, business, properties any court or prospects governmental agency or body is required for the consummation of the Company and its subsidiaries, taken as a whole, whether transactions contemplated herein or not arising from transactions in the ordinary course of businessany Delayed Delivery Contracts, except such as set forth in or contemplated in have been obtained under the Disclosure Package Act and such as may be required under the Prospectus (exclusive blue sky laws of any amendment or supplement thereto) the effect of which is, jurisdiction in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed connection with the offering or delivery purchase and distribution of the Securities as contemplated by the Registration Statement Underwriters and such other approvals (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lspecified in such opinion) Subsequent to the Execution Time, (i) there shall not as have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.obtained;
Appears in 1 contract
Samples: Underwriting Agreement (Coca Cola Bottling Co Consolidated /De/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofand any Settlement Date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Sidley Austin LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date or any Settlement Date, if applicable, and addressed to the Representatives, in the form attached in Annex A hereto.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx, Xxxxxx & Xxxxxxxx LLPFinger, P.A., counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date or any Settlement Date, if applicable, and addressed to the Representatives, in the form attached in Annex B hereto.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or any Settlement Date, if applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date or any Settlement Date, if applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the SecuritiesOffering, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership Remora Entities in this Agreement are true and correct on and as of the Closing Date, Date or applicable Settlement Date with the same effect as if made on such date, the Closing Date or applicable Settlement Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or applicable Settlement Date;
(ii) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipRemora Entities’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(gf) The Company shall have furnished requested and caused Xxxxx Xxxxxxxx LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request Execution Time, at the Closing Date and any Settlement Date, if applicable, letters, dated respectively as of the CompanyExecution Time, a letterthe Closing Date or any Settlement Date, dated the respective dates of delivery thereof and addressed to the Underwritersas applicable, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(jg) In order The Company shall have requested and caused Xxxxxx, Xxxxxxxxx & Associates, Inc. to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect have furnished to the transactions herein contemplatedRepresentatives, such Selling Stockholder will deliver to you prior to or at the Execution Time, at the Closing Date (and any Settlement Date, if applicable, letters, dated respectively as hereinafter defined) a properly completed of the Execution Time, the Closing Date and executed United States Treasury Department Form W-9 (or other applicable any Settlement Date, as applicable, in form or statement specified by Treasury Department regulations in lieu thereof)and substance satisfactory to the Representatives.
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(f) hereto or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) At The Securities shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) FINRA, upon review, if any, of the terms of the Offering, shall not have objected to such offering, such terms or prior the Underwriters’ participation in same.
(l) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company and each of the other persons listed on Schedule IV V hereto addressed to the Representatives.
(m) In connection with the sale of the Underwritten Securities on the Closing Date, the Offering Transactions shall have been duly consummated at the respective times and on the terms contemplated by this Agreement, the Registration Statement and the Prospectus and the Representatives shall have received such evidence that the Offering Transactions have been consummated as the Representatives may reasonably request. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date and any Settlement Date, as applicable, by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered electronically or at the office of Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 000 Xxxx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, XX Xxxxxxx, Xxxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US King & Spalding LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit A hereto.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, in-house counsel for the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit B hereto.
(d) Each Selling Stockholders, Stockholder shall have requested and caused its counsel to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives., to the effect that:
(di) [Reserved]this Agreement, the Custody Agreement and Power of Attorney has have been duly authorized, executed and delivered by the Selling Stockholders, the Custody Agreement is valid and binding on the Selling Stockholders and each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by any Selling Stockholder of the transactions contemplated herein, except such as may be required under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by any Selling Stockholder or the fulfillment of the terms hereof by any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any material indenture or other agreement or instrument known to such counsel (which shall be listed on a schedule to such opinion) and to which any Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder or any of its subsidiaries.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & Xxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageProspectus, the Prospectus Disclosure Package and any amendment or supplement thereto, as well as each electronic road show roadshow used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Chairman of the Board, the President, or the principal financial or accounting officer of such Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate have carefully examined the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ih) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of Ernst & Young caused KPMG LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the type customarily included Company for the three-month period ended March 31, 2006 and as at March 31, 2006, in accountants’ “comfort letters” to underwriters accordance with respect to the financial statements Statement on Auditing Standards No. 100 and certain financial information included or incorporated by reference otherwise substantially in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateform set forth in Exhibit C hereto.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nk) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A D hereto from each officer and director of the Company and each Selling Stockholder and holder of 5% or more of the other persons listed on Schedule IV hereto Company’s Common Stock addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & Xxxx Xxxxx LLP, counsel for the Underwriters, at Citicorp Center, 000 Xxxx Xxxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, by 9am (local time) on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (CHG Healthcare Services, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxxxxxx Xxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Inegative assurances letter, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibits A-1 and A-2 respectively.
(c) The Selling Stockholders shall have requested and caused Xxxxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives, substantially to the effect set forth in Exhibit A-3.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed on behalf of the Company by the Chairman of the Board or the Chief Executive Officer or an Executive Vice President or Senior Vice President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(hf) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Chairman of the Selling StockholderBoard or the President or manager, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Underwriters shall have received, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, with as the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriterscase may be, in form and substance reasonably satisfactory to the Representatives, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, provided that the letter delivered on the Closing Date shall use a “cut-offoff date” not earlier than the date no more than three business days prior to such datehereof.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) At or prior Subsequent to the Execution Time, there shall not have been any decrease in the Company rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Representatives shall have furnished to received letters, dated, respectively, the Representatives a letter substantially date hereof and the Closing Date, executed by the Chief Financial Officer or Chief Accounting Officer of the Company, in the form of Exhibit A hereto from each officer B-1 and director B-2 respectively.
(l) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of the Company and each of the other persons listed on Schedule IV hereto addressed such actions shall have been provided to the Representatives.
(m) On or prior to or at the Closing Date, the Representatives shall have received from each Selling Stockholder a properly completed and executed IRS Form W-9 or an IRS Form W-8, as appropriate. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentatives . Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives Representative their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the RepresentativesRepresentative.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives Representative their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the RepresentativesRepresentative.
(d) [Reserved].
(e) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives Representative a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives Representative to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the RepresentativesRepresentative, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesRepresentative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the RepresentativesRepresentative. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Brixmor Operating Partnership LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Selling Stockholders of its respective obligations hereunder and to the following additional conditions;:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their an opinion and letter substantially in the form attached hereto as Annex Inegative assurance statement, each dated the Closing Date and addressed to the RepresentativesRepresentatives substantially in the form set forth in Exhibits A-1 and A-2, respectively.
(c) The Selling Stockholders shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion an opinion, dated the Closing Date and addressed to the Representatives substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representativesset forth in Exhibit A-3.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, Date to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and contained in Section 1(i) of this Agreement, including, for the Operating Partnership avoidance of doubt, in Section 1(i)(dd) of this Agreement Agreement, are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or of the Company incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(gf) The Company Representatives shall have furnished to received on the Representatives Closing Date a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholdercertificate, dated the Closing DateDate and signed by each Selling Stockholder, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on Date and that such date; and
(ii) the Selling Stockholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at hereunder on or prior to before the Closing Date.
(ig) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of caused PricewaterhouseCoopers LLP and Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the Underwriters, Closing Date in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference substantially in the Registration Statement, the Disclosure Package form set forth in Exhibit B and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.Exhibit C.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates information and documents as the Representatives may reasonably request.
(nj) At or prior to the Execution Time, the Company The Securities shall have furnished to been listed and admitted and authorized for trading on the Representatives a letter substantially in the form New York Stock Exchange and satisfactory evidence of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed such actions shall have been provided to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders 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 offices of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) Opinions and caused a negative assurance letter, each dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, each in form and substance reasonably satisfactory to the Representatives.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for (i) WTC, individually, and as Subordination Agent, Trustee and Loan Trustee and (ii) WTNA, as Escrow Agent, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit A hereto.
(3) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit B hereto.
(4) An opinion, dated as of the Closing Date, from King & Wood Mallesons, special Australian counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit C hereto.
(5) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit D hereto.
(6) An opinion, dated as the Closing Date, from in-house counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit E hereto.
(7) An opinion and a negative assurance letter, each dated as of the Closing Date, from Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Company Underwriters, each in form and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each of (iii) the Company and the Operating Partnership has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither Xxxxx’x Investors Service, a division of Ernst & Young LLP and Deloitte & Touche LLP Xxxxx’x Corp. nor Fitch Ratings, Inc. shall have furnished to downgraded the Representatives, at the request rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from KPMG LLP a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facilities, the Trust Agreements, the Escrow Agreements, the Deposit Agreements and the Note Purchase Agreement shall have been executed and delivered by each party thereto; providedthe representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such effect.
(g) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) Each class of Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectuses identified as Items 2 and 4 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) On the Closing Date, the Depositary shall have furnished to the Underwriters a certificate of the Depositary, signed by an officer of the Depositary, dated as of the applicable date, to the effect that the letter delivered representations and warranties of the Depositary contained in Section 1(b) hereof are true and correct with the same force and effect as though made on the such Closing Date shall use a “cut-off” date no more than three business days prior to such dateDate.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the The Company shall have furnished to the Representatives a letter substantially Underwriters and their counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the form purpose of Exhibit A hereto from each officer enabling such counsel to pass upon the matters referred to in subsection (b)(7) of this Section 4 and director in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company and each of theretofore to be performed, or the other persons listed on Schedule IV hereto addressed to the Representatives. If compliance with any of the conditions herein contained. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP[●], counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate of the principal financial officer of the Company, dated the Closing Date, to the effect that such principal financial officer has examined the Registration Statement and the Disclosure Package, has supervised the compilation of the financial data and information included therein and has read the Company’s financial statements, books and records or schedules or analyses derived therefrom that such principal financial officer has deemed necessary to make the certifications set forth therein relating to the accuracy of certain estimated financial information and certain forward-looking information contained in the Disclosure Package (collectively, the “Certified Information”) and that:
(i) the Certified Information has been prepared by the Company on a reasonable basis and in good faith from information available to date (including, without limitation, the Company’s accounting records) believed by such principal financial officer to be reliable;
(ii) the assumptions underlying the Certified Information are reasonable assumptions as of the Closing Date; and
(iii) the Certified Information represents the Company’s best estimates as of the Closing Date.
(g) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by an authorized person of such Selling Stockholder, dated the Closing Date, to the effect that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(h) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nk) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) 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 Representatives.
(m) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto addressed to the Representatives from each officer and director of the Company and each of the other persons and entities listed on Schedule IV hereto Exhibit [•] hereto.
(n) The Representatives shall have received from Xxxxxxxx Xxxxxx a letter in form and substance satisfactory to the Representatives, dated the Closing Date and addressed to the Representatives, covering the coal reserves information in the Registration Statement, the Disclosure Package and the Prospectus and other customary matters relating to the Company’s reserves described in the Registration Statement, the Disclosure Package and the Prospectus. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 000 Xxxx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxxxxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank or X.X. Xxxxxx Xxxxx & Co. which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank or X.X. Xxxxxx Chase & Co. on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesNotes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipBank, dated the Closing Date, Date and reasonably satisfactory in form and to the effect (a) that under current law the signers of such certificate have carefully examined Notes will be characterized as debt, and the Registration StatementTrust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the qualifications set forth therein, the Disclosure Package, statements made in the Prospectus Supplement under the caption "Material Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal tax law and any amendment regulations or supplement legal conclusions with respect thereto, as well as each electronic road show used in connection with the offering constitute accurate summaries of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIUnited States federal income tax matters described therein.
(h) Each Selling Stockholder The Representative shall have furnished received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Representatives a certificate of Owner Trustee, and such other counsel reasonably satisfactory to the Selling StockholderRepresentative and its counsel, dated the Closing Date, Date and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel Representative, with respect to such matters as are customary for the Underwriterstype of transaction contemplated by this Agreement.
(i) The Class A-1 Notes shall have been rated "A-1+" by Standard & Poor's, this Agreement "P-1" by Xxxxx'x and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date "F1+" by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writingFitch. The documents required to be delivered Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been rated "AAA" by this Section 7 Standard & Poor's, "Aaa" by Xxxxx'x and "AAA" by Fitch. The Certificates shall be delivered at the office of Skaddenhave been rated "A" by Standard & Xxxx'x, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date"X0" by Xxxxx'x and "A+" by Fitch.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Auto Owner Trust 2001-B)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the each Selling Stockholders Shareholder contained herein in this Underwriting Agreement as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the each Selling Stockholders Shareholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and each Selling Shareholder of its their respective obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) The International Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any notice objecting to its their use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company and each Selling Shareholder shall have requested and caused Xxxxx Lovells US Milbank, Tweed, Xxxxxx & XxXxxx LLP, special U.S. counsel for the Company and the Operating PartnershipSelling Shareholders, to have furnished to the Representatives Representative their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the RepresentativesRepresentative in the form and substance satisfactory to the Representative.
(c) The Company and the Selling Stockholders Shareholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxx, Angoitia, Xxxxxx x Xxxxxxx, S.C., special Mexican counsel for the Company and the Selling StockholdersShareholders, to have furnished to the Representatives Representative their opinion substantially opinion, dated the Closing Date and addressed to the Representative in the form attached hereto as Annex IIand substance satisfactory to the Representative.
(d) The Depositary shall have requested and caused Xxxxxxx, Xxxxxxx & Associates LLP, counsel for the Depositary, to have furnished to the Representative their opinion dated the Closing Date and addressed to the Representative in the form and substance satisfactory to the Representative.
(e) EIP shall have requested and caused NautaDutilh BVBA, special Belgium counsel for EIP, and Milbank, Tweed, Xxxxxx & XxXxxx LLP, special Delaware counsel for EIP, to have furnished to the Representative their opinions, dated the Closing Date, and addressed to the RepresentativesRepresentative in the form and substance satisfactory to the Representative.
(d) [Reserved].
(ef) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, New York counsel for the Underwriters and Xxxxx Xxxxxxx, S.C., Mexican counsel to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus Prospectuses (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership each Selling Shareholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fg) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageADR Registration Statement, the Prospectus Prospectuses, the Disclosure Package and any amendment amendments or supplement supplements thereto, as well as each electronic road show used in connection with any supplements to the offering of the Securities, and this Agreement Global Underwriting Agreements and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Underwriting Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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 the ADR Registration Statement or of any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the International Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, results of operations, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the International Prospectus (exclusive of any supplement thereto).
(h) Each Selling Shareholder shall have furnished to the Representative a certificate, signed by such Selling Shareholder (and, in the case of EIP, signed by the principal operating officer of EIP), dated the Closing Date, attaching true and correct copies of any relevant powers of attorney and to the effect that the signers of such certificate have carefully examined the Registration, the ADR Registration Statement, the Prospectuses, any Issuer Free Writing Prospectus, any amendments or supplements thereto and the Underwriting Agreement, and that the representations and warranties of each Selling Shareholder in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused Galaz, Yamazaki, Xxxx Xxxxxxx, S.C., a member firm of Deloitte Touche Tohmatsu International to have furnished to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in the form and substance satisfactory to the Representative.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), and the International Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, results of operations, 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 or contemplated in the Disclosure Package and the International Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus Prospectuses (exclusive of any amendment or supplement thereto).
(k) The closing of the purchase of the Mexican Underwritten Securities to be issued and sold by the Company and each Selling Shareholder pursuant to the Mexican Underwriting Agreement shall occur concurrently with the closing of the purchase of the Underwritten Securities described herein.
(l) Subsequent The Company and the Depositary shall have executed and delivered the Deposit Agreement in form and substance satisfactory to the Execution Time, Representative and the Deposit Agreement shall be in full force and effect;
(i) there The Depositary shall not have been any decrease in furnished or caused to be furnished to the rating of any Representative certificates satisfactory to the Representative evidencing the deposit with the custodian of the Company’s or Underlying Shares in respect of which ADSs on such Closing Date are to be issued, and the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” execution, issuance, countersignature (as defined in Section 3(a)(62if applicable) and delivery of the Exchange Act), and ADRs evidencing such ADSs pursuant to the Deposit Agreement;
(ii) no such organization Any Securities to be delivered in the form of Common Shares shall have publicly announced that it has under surveillance or review, been deposited and credited to the account designated by the Representative with possible negative implications, its ratings of any of Indeval;
(iii) Such other matters related thereto as the CompanyRepresentative reasonably request shall have been addressed to the Representative’s debt securitiessatisfaction.
(mn) Prior to the Closing Date, the Company, the Operating Partnership Company and the each Selling Stockholders Shareholder shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(no) The ADSs shall have been approved for listing and authorized and admitted for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representative.
(p) All approvals required under the laws of Mexico at the Closing Time shall have been obtained including the registration of the Global Shares with the Securities and Special Sections of the National Registry of Securities, the approval of the public offering by the Mexican National Banking and Securities Commission, the listing and admittance and authorization for trading of the Global Shares by the Mexican Stock Exchange and the approval of certain special conditions in connection with the public offering in Mexico of the Mexican Shares from the Mexican Stock Exchange.
(q) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto Xxxxxxxxx Xxxxx de Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxx xx Xxxxxxx Xxxxxxxxx, Xxxxxxx de Xxxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx y Xxxxx addressed to the RepresentativesRepresentative. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Underwriting Agreement and all obligations of the Underwriters hereunder under this Underwriting Agreement may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and each Selling Stockholders Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, New York counsel for the Underwriters, at Xxxx Xxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Issuers contained herein as of the Execution Time, Applicable Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and or the Selling Stockholders Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company and Guarantors pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Operating PartnershipGuarantors, to have furnished to the Representatives their its opinion and letter substantially negative assurance letter, each dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the form attached hereto as Annex IRepresentatives.
(c) The Company shall have requested and caused GableGotwals, counsel for the Company and the Guarantors, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested , in form and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed substance reasonably satisfactory to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company and the Guarantors shall have each furnished to the Representatives a certificate of the CompanyCompany and the Guarantor, as the case may be, signed by the their respective Chief Executive Officer Officer, President or a Vice President and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipOfficer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure PackageFinal Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership Issuers in Section 1 of this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, and each of the Company Closing Date and the Operating Partnership has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of Company’s or the Company and the Operating PartnershipGuarantors’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(gf) The Company shall have furnished requested and caused PricewaterhouseCoopers LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request Applicable Time and at the Closing Date, “comfort letters” (which may refer to letters previously delivered to the Representatives), dated respectively as of the Company, a letter, dated Applicable Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the RepresentativesRepresentatives and PricewaterhouseCoopers LLP, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the certain unaudited financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kg) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise)business, properties, earnings, results of operations, business, properties operations or prospects financial condition of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) ), the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Final Prospectus.
(lh) Subsequent to the Execution Applicable Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s Guarantors’ debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(mi) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone telephone, email or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Shearman & Xxxx Sterling LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date, or as otherwise agreed by the Company and the Representatives.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) Opinions and caused a negative assurance letter, each dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, each in form and substance reasonably satisfactory to the Representatives.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for (i) WTC, individually, and as Subordination Agent, Trustee and Loan Trustee and (ii) WTNA, as Escrow Agent, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit A hereto.
(3) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit B hereto.
(4) An opinion, dated as of the Closing Date, from in-house counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit C hereto.
(5) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit D hereto.
(6) An opinion, dated as the Closing Date, from in-house counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit E hereto.
(7) An opinion and a negative assurance letter, each dated as of the Closing Date, from Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Company Underwriters, each in form and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each of (iii) the Company and the Operating Partnership has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither Xxxxx’x Investors Service, a division of Xxxxx’x Corp. nor Fitch Ratings, Inc. shall have downgraded the rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided, that .
(f) Promptly after the letter delivered on execution of this Agreement and also at the Closing Date Time, the Underwriters shall use have received from KPMG LLP a letter or letters, dated as of the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “cut-offcomfort letters” date no more than three business days prior to underwriters with respect to certain financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(g) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facilities, the Trust Agreements, the Escrow Agreements, the Deposit Agreements and the Note Purchase Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such dateeffect.
(h) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(i) Each class of Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectuses identified as Item 2 and 4 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions On each of the Tax Equity date hereof and Fiscal Responsibility Act of 1982 with respect on the Closing Date, the Depositary shall have furnished to the transactions herein contemplatedUnderwriters a certificate of the Depositary, such Selling Stockholder will deliver signed by an officer of the Depositary, dated as of the applicable date, to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations effect set forth in lieu thereof)Schedule III hereto.
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the The Company shall have furnished to the Representatives a letter substantially Underwriters and their counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the form purpose of Exhibit A hereto from each officer enabling such counsel to pass upon the matters referred to in subsection (b)(7) of this Section 4 and director in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company and each of theretofore to be performed, or the other persons listed on Schedule IV hereto addressed to the Representatives. If compliance with any of the conditions herein contained. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx, LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion or opinions and letter substantially in the form attached hereto as Annex Iletter, dated the Closing Date and addressed to the RepresentativesRepresentatives substantially in the form of Exhibit A to this agreement.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of both the Company, ’s general counsel and by executive officers of either the Operating Partnershipchief financial officer or principal accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, any supplements to the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition, financial or otherwise, or in the earnings, business or operations, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ge) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, requested and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of caused Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Company, a letterRepresentatives), dated respectively as of the respective dates Execution Time and as of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and (ii) containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters the Representatives, delivered according to Statement of Auditing Standards Nos. 72 and 76 (or any successor bulletins), with respect to the audited and unaudited consolidated financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been been, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto), any change, or any development involving a prospective changedevelopment, in or affecting the condition (financial or otherwise), results of operationsearnings, business, properties business or prospects operations of the Company and its subsidiaries, taken considered as a wholeone entity, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mg) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nh) At or prior Subsequent to the Execution Time, the Company there shall not have furnished to the Representatives a letter substantially been any decrease in the form rating of Exhibit A hereto from each officer and director any of the Company and each Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the other persons listed on Schedule IV hereto addressed to the Representativespossible change. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation cancelation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Shareholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLPDxxxx Xxxx & Wxxxxxxx, counsel for the Company and SMART Modular Technologies, Inc., to have furnished to the Operating PartnershipRepresentatives their opinion, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Underwriters.
(c) The Company shall have requested and caused Mxxxxx and Calder, Cayman Island counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Underwriters.
(d) The Company shall have requested and caused Axx Xxxxxx, Esq., General Counsel of the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Underwriters.
(e) The Company shall have requested and caused Sxxxxx Xxxxxxxx & Co., special Malaysian counsel of the Company, to have furnished to the Representatives their opinion dated the Closing Date and letter addressed to the Underwriters, in form and substance satisfactory to the Underwriters.
(f) The Company shall have requested and caused Mxxxxx and Cxxxxx, Cayman Island counsel of the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Underwriters, substantially in form of Exhibit E hereto.
(g) The Company shall have requested and caused McGrigors LLP, special United Kingdom counsel of the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Underwriters, in form attached hereto as Annex Iand substance satisfactory to the Underwriters.
(h) The Company shall have requested and caused Tozzini, Freire, Txxxxxxx e Sxxxx Advogados, special Brazilian counsel of the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Underwriters.
(i) Francisco Partners, L.P., Francisco Partners Fund A, L.P., FP Annual Fund Investors, L.L.C., Pxxxx Family Partners, L.P., T3 II SM, LLC, TPG II SM, LLC and TPG IV SM, LLC, Shah Capital Partners, L.P. and WestRiver Capital I LLC shall have requested and caused Dxxxx Xxxx & Wxxxxxxx, Gxxxxxxxx Dxxxxxx Xxxxxx Vxxxxxxxxx Xxxxxxxx & Hxxxxxxxx, LLP, Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx, LLP, Walkers and Pxxxxxx Coie LLP, respectively, each counsel for certain of such Selling Shareholders, to have furnished to the Representatives their respective opinions dated the Closing Date and addressed to the Underwriters, in each case, in form and substance satisfactory to the Underwriters.
(j) The Representatives shall have received from Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel for the Underwriters, such opinion and negative assurance letters, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Shareholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fk) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the Chairman of the Board or the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, thereto as well as each electronic road show roadshow used in connection with to offer the offering of the Securities, Underwritten Securities and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(gl) The Company Each Selling Shareholder shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chief Financial Officer Secretary of the Company, dated the date hereof, substantially such Selling Shareholder in the form attached hereto his or her capacity as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholdersuch and not in his or her individual capacity, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate is familiar with the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the such Selling Stockholder Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(im) On the date of this Agreementthe Statutory Prospectus, at the Execution Time and on at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP the Company shall have furnished requested and caused KPMG LLP to furnish the RepresentativesRepresentatives “comfort” letters, at the request dated as of the Companydate of the Statutory Prospectus and as of the Execution Time, respectively, and a bring-down “comfort” letter, dated as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information confirming that they are independent public accountants within the meaning of the type customarily included in accountants’ “comfort letters” to underwriters Act and the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and certain other financial and accounting information included or incorporated by reference contained in the Registration Statement, the Disclosure Package Statutory Prospectus and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kn) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (j) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mo) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Shareholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(np) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(q) The Securities shall have been included for quotation on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(r) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Sxxxxxx Xxxxxxx & Xxxx Bxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 2000 Xxxxxxx Xxxxxx, Xxx Xxxx Xxxx, XX Xxxxxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (SMART Modular Technologies (WWH), Inc.)
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a “Procedures Letter”), dated the date of this Agreement of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, JPMorgan Chase Bank, National Association or JPMorgan Chase & Co. which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Offered Notes or makes it impractical to market the Offered Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, JPMorgan Chase Bank, National Association or JPMorgan Chase & Co. on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Offered Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to certain matters relating to the treatment of the transfer of the Receivables from the Bank to the Trust by the Federal Deposit Insurance Corporation and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the perfection of the Trust’s and the Indenture Trustee’s interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & Xxxx Wood LLP, counsel for to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesOffered Notes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special tax counsel to the Representatives Bank, dated the Closing Date and reasonably satisfactory in form and to the effect (a) that under current law the Notes will be characterized as debt, and the Trust will not be characterized as an association (or a certificate publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the qualifications set forth therein, the statements made in the Prospectus Supplement under the caption “Material Federal Income Tax Consequences,” insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the CompanyUnited States federal income tax matters described therein.
(h) The Representative shall have received an opinion of Xxxxxxxx, signed by Xxxxxx & Finger, P.A., special counsel to the Chief Executive Officer and the Chief Financial Officer of the CompanyOwner Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by executive officers of the Operating Partnershipthis Agreement.
(i) The Notes shall have been rated “AAA” by Standard & Poor’s, “Aaa” by Xxxxx’x and “AAA” by Fitch. The Certificates shall have been rated “A+” by Standard & Poor’s, “A3” by Xxxxx’x and “AA-” by Fitch.
(j) The Representative shall have received a certificate, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Bank in which such person, to the effect best of his or her knowledge after reasonable investigation, shall state that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership Bank in this Agreement are true and correct in all material respects on and as of the Closing Date, with (ii) the same effect as if made on such date, and each of the Company and the Operating Partnership Bank has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
, (iiiii) the representations and warranties of the Bank, as Seller and Servicer, in the Sale and Servicing Agreement and, as Depositor, in the Trust Agreement, are true and correct as of the dates specified in the Sale and Servicing Agreement and the Trust Agreement, (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted oror are threatened by the Commission, (v) subsequent to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect, material adverse change in the financial position or results of operation of the Bank’s automotive finance business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and by the Prospectus or as described in such certificate and (exclusive vi) the Prospectus does not contain any untrue statement of any supplement thereto).
(g) The Company shall have furnished a material fact or omit to state a material fact required to be stated therein or necessary in order to make the Representatives a certificate statements therein, in light of the Companycircumstances under which they were made, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)not misleading.
(k) Subsequent On the Closing Date, $31,750,000.00 aggregate amount of Certificates shall have been issued and sold pursuant to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Certificate Underwriting Agreement.
(l) Subsequent On the Closing Date, the Class R Certificate shall have been issued to the Execution Time, (i) there shall not have been any decrease in Bank pursuant to the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesTrust Agreement.
(m) Prior to On the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Class A-1 Notes shall have furnished been duly executed by the Trust, duly authenticated by the Indenture Trustee and delivered to the Representatives Bank pursuant to the Indenture. The Bank will furnish the Representative, or cause the Representative to be furnished, with such further informationnumber of conformed copies of such opinions, certificates certificates, letters and documents as the Representatives may Representative reasonably requestrequests.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Auto Owner Trust 2005-B)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Initial Sale Time and as of the Closing Date pursuant (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to Section 4 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereofof this Section 5, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxx LLP, U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., to the effect set forth in Annex I hereto;
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Blake, Xxxxxxx & Xxxxxxxx Xxxxxxx LLP, Canadian counsel for the Selling StockholdersCompany, to shall have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives., with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex IIa and Annex IIb;
(d) [Reserved].
(e) The Representatives shall have received from SkaddenXxxx, ArpsWeiss, SlateRifkind, Xxxxxxx & Xxxx Xxxxxxxx LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(e) The Representatives shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Vice-President, Finance and the Chief Financial Officer Senior Vice-President, Capital Markets of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageCanadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:Agreement;
(iii) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the knowledge of Company’s knowledge, instituted or threatened by the Company and Reviewing Authority or the Operating Partnership, threatened; andCommission;
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any supplement thereto)Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Disclosure Package; and
(v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Initial Sale Time and the Closing Date, the Representatives shall have received from KPMG LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other 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 in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus;
(h) Subsequent to the Initial Sale Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Initial Sale Time, the Canadian Final Prospectus as amended or supplemented prior to the Initial Sale Time, the Disclosure Package or any Issuer Free Writing Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 5 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 Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any amendment or supplement thereto) Disclosure Package the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).Issuer Free Writing Prospectus;
(li) Subsequent to the Execution Initial Sale Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and ) 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;
(iij) no such organization shall have publicly announced that it If the Registration Statement or an offering of Securities has under surveillance or been filed with the FINRA for review, the FINRA shall not have raised any objection with possible negative implications, its ratings of any respect to the fairness and reasonableness of the Company’s debt securities.underwriting terms and arrangements; and
(mk) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 5 shall be delivered at the office of Skaddenthe Company, ArpsAttention: Corporate Secretary, Slate000 — 0xx Xxxxxx X.X., Xxxxxxx & Xxxx LLPXxxxxxx, counsel for the UnderwritersXxxxxxx, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, X0X 0X0 on the Closing DateDate or such other place as the Company and the Representatives shall so agree.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Initial Sale Time and as of the Closing Date pursuant (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to Section 4 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereofof this Section 5, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxx LLP, U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., to the effect set forth in Annex I hereto;
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Blake, Xxxxxxx & Xxxxxxxx Xxxxxxx LLP, Canadian counsel for the Selling StockholdersCompany, to shall have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives., with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex IIa and Annex IIb;
(d) [Reserved].
(e) The Representatives shall have received from SkaddenXxxx, ArpsWeiss, SlateRifkind, Xxxxxxx & Xxxx Xxxxxxxx LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(e) The Representatives shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Vice-President, Finance and Treasurer and the Executive Vice-President, Corporate Development and Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageCanadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:Agreement;
(iii) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the knowledge of Company’s knowledge, instituted or threatened by the Company and Reviewing Authority or the Operating Partnership, threatened; andCommission;
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any supplement thereto)Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Disclosure Package; and
(v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Initial Sale Time and the Closing Date, the Representatives shall have received from KPMG LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other 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 in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus;
(h) Subsequent to the Initial Sale Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Initial Sale Time, the Canadian Final Prospectus as amended or supplemented prior to the Initial Sale Time, the Disclosure Package or any Issuer Free Writing Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 5 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 Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any amendment or supplement thereto) Disclosure Package the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).Issuer Free Writing Prospectus;
(li) Subsequent to the Execution Initial Sale Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and ) 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;
(iij) no such organization shall have publicly announced that it If the Registration Statement or an offering of Securities has under surveillance or been filed with the FINRA for review, the FINRA shall not have raised any objection with possible negative implications, its ratings of any respect to the fairness and reasonableness of the Company’s debt securities.underwriting terms and arrangements; and
(mk) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 5 shall be delivered at the office of Skaddenthe Company, ArpsAttention: Corporate Secretary, Slate000 — 0xx Xxxxxx X.X., Xxxxxxx & Xxxx LLPXxxxxxx, counsel for the UnderwritersXxxxxxx, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, X0X 0X0 on the Closing DateDate or such other place as the Company and the Representatives shall so agree.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than 9:30 AM on the Business Day following the day on which the public offering price was determined; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLPMilbank, Tweed, Xxxxxx & XxXxxx LLP and [•], U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinions, dated the Closing Date and addressed to the Representatives, in the forms set forth on Annex A-1 and A-2, respectively, hereto.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPPayet, Rey, Cauvi Abogados, Peruvian counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives, in the form set forth on Annex B hereto.
(d) [Reserved]The Company shall have requested and caused Lic. Xxxxxxx Xxxxxx G., General Counsel of the Company, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in the form set forth on Annex C hereto.
(e) Cerro Trading Company, Inc. and SPC Investors, L.L.C. shall have requested and caused [•], counsel for each (which may be internal counsel, external counsel or both, reasonably acceptable to the Representatives), to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in the form set forth on Annex D hereto.
(f) The Xxxxxx Dodge Entities shall have requested and caused [•], counsel for the Xxxxxx Dodge Entities (which may be internal counsel, external counsel or both, reasonably acceptable to the Representatives), to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in the form set forth on Annex D hereto.
(g) The Representatives shall have received from Skadden(i) Cravath, ArpsSwaine & Xxxxx LLP, SlateNew York counsel for the Underwriters, (ii) Estudio Xxxx Echecopar Xxxxxx, Peruvian counsel for the Underwriters, and (iii) Xxxxx, Xxxxxxx & Xxxx LLPX Xxxxxxx, S.C., Mexican counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fh) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, any supplements to the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnershipsigners’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(hi) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed on its behalf by (i) the Chairman of the Board, the President, any Vice President or the managing member of such Selling Stockholder and (ii) the principal financial or accounting officer of such Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signers of such certificate have examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ij) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall caused PricewaterhouseCoopers S.C. to have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, and stating in effect that:
(i) in their opinion the audited combined consolidated financial statements and information financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the type customarily included Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accountants’ “comfort letters” to underwriters accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the executive, compensation and audit committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial statements and certain financial accounting matters regarding the specific items for which representations are requested below nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2004, there was any change, at a specified date not more than five days prior to the date of the letter, in the long-term debt, or decrease in total assets or stockholders’ equity of the combined company as compared with the amounts shown on the December 31, 2004, combined balance sheet included in the Registration Statement and the Final Prospectus, or for the period from January 1, 2005 to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in consolidated total net sales, net earnings, operating income, or basic and diluted net earnings per share, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(2) the information included or incorporated by reference in the Registration StatementStatement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) is not in conformity with the Disclosure Package applicable disclosure requirements of Regulation S-K; and
(3) the unaudited income statement for the three-month periods ended March 31, 2005 and 2004 and balance sheet data as of March 31, 2005 and 2004 included in the Final Prospectus under the heading “Recent Developments” do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus; providedand
(iii) they have performed certain other specified procedures, requested by the Representatives, as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the letter delivered on general accounting records of the Closing Date shall use a “cut-off” date no more than three business days prior Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus that has previously been identified to such date.
you agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (j) In order to document include any supplement thereto at the Underwriters’ compliance with the reporting and withholding provisions date of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)letter.
(k) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, and stating in effect that:
(i) in their opinion the audited consolidated financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) they have performed certain other specified procedures, requested by the Representatives, as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus that has previously been identified to you agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (k) include any supplement thereto at the date of the letter.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraphs (j) or (k) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, results of operations, business, business or properties or prospects of the Company and its subsidiaries, taken considered as a wholeone enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(o) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer stockholder and director of the Company and each of the other persons individual listed on in Schedule IV hereto hereto, addressed to the Representatives.
(p) At the Execution Time, each Selling Stockholder shall have furnished to the Representatives a letter substantially in the form of Exhibit B hereto, addressed to the Representatives.
(q) The NASD shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of SkaddenCravath, Arps, Slate, Xxxxxxx Swaine & Xxxx Xxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Southern Peru Copper Corp/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any amendment or supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLPWxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives, to the effect of the substantive paragraphs set forth on Annex A hereto.
(c) The Selling Stockholders shall have requested and caused Wxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLPRxxxxx, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives, to the effect of the substantive paragraphs set forth on Annex B hereto.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Dxxxx Xxxx & Xxxx LLPWxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any amendment or supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsprospects, businessearnings, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by an executive officer or general partner, as applicable, of such Selling Stockholder, dated the Closing Date, to the effect that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused BDO Sxxxxxx, LLP to have furnished to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, and in the case of the letter dated as of the Execution Time, substantially in the form of Annex C hereto.
(h) The Company shall have requested and caused each of Ernst & Young LLP (with respect to Tegic Communications, Inc.), Vxxxxx, Cxxxxxxx & Company, Ltd. (with respect to Voice Signal Technologies, Inc.), S.R. Batliboi & Associates (a member firm of Ernst & Young Global) (with respect to Bluestar Resources Limited), PricewaterhouseCoopers LLP (with respect to Dictaphone Corporation), Gxxxx Xxxxxxxx LLP (with respect to Dictaphone Corporation), Deloitte & Touche LLP (with respect to Former Nuance Communications Inc.), Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global (with respect to Phonetic Systems Ltd.), McGladrey & Pxxxxx, LLP (with respect to Commissure, Inc.) and WithumSmith+Bxxxx, P.C. (with respect to Viecore, Inc.), to have furnished to the Representatives, at the Execution Time and at the Closing Date, accountant’s “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraphs (g) and (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(lj) Subsequent Prior to the Execution TimeClosing Date, (i) there each of Warburg Pincus Private Equity VIII, L.P., Warburg Pincus Netherlands Private Equity VIII, C.V.I and WP-WPVIII Investors, L.P. shall not have been any decrease delivered to the Representatives a letter substantially in the rating form of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesExhibit A-2 hereto.
(mk) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nl) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A A-1 hereto from each officer of the executive officers and director directors of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Dxxxx Xxxx & Xxxx LLPWxxxxxxx, counsel for the Underwriters, at Xxxx Xxxxx 400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Nuance Communications, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Timedate hereof, at the Time of Sale and as of the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, Registration Statement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) become effective under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act and no proceedings for that purpose shall have been instituted or threatenedbe pending or threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Act objecting to use of the automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance with Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their the opinion and negative assurance letter substantially in of DLA Piper LLP (US), counsel to the form attached hereto as Annex ICompany, dated the Closing Date and addressed Date, to the Representativeseffect set forth in Exhibit A hereto.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their the opinion substantially in of Xxxx Xxxxxxxxx, General Counsel of the form attached hereto as Annex IICompany, dated the Closing Date, and addressed to the Representativeseffect set forth in Exhibit B hereto.
(d) [Reserved].
(e) The Representatives shall have received from SkaddenMilbank, ArpsTweed, Slate, Xxxxxxx Xxxxxx & Xxxx XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration StatementIndenture, the Disclosure PackageTime of Sale Information, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, Company signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, Company dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose have been instituted or threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Act objecting to use of the automatic shelf registration statement form;
(iii) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Time of Sale Information and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effectmaterial adverse change, or development involving a prospective material adverse change, in the financial condition, earnings, business, management, properties or results of operations of the Company and its subsidiaries on a consolidated basis, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package Time of Sale Information and the Prospectus (exclusive of any supplement thereto)Prospectus.
(gf) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, Agreement and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the RepresentativesRepresentatives letters, at the request dated respectively as of the Company, a letter, dated date of this Agreement and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters Underwriters with respect to the financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package Preliminary Prospectus and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days Business Days prior to such date.
the Closing Date and (jii) In order on the date of this Agreement and on the Closing Date, PWC shall have furnished to document the Underwriters’ compliance with the reporting and withholding provisions Representatives letters, dated respectively as of the Tax Equity date of this Agreement and Fiscal Responsibility Act as of 1982 the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Underwriters with respect to the transactions herein contemplatedfinancial statements and certain financial information contained in the Registration Statement, such Selling Stockholder will deliver to you prior to or at the Preliminary Prospectus and the Prospectus; provided, that the letter delivered on the Closing Date (as hereinafter defined) shall use a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)“cut-off” date no more than three Business Days prior to the Closing Date.
(kg) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement Time of Sale Information (exclusive of any amendment thereofsupplement thereto) and the Prospectus (exclusive of any supplement thereto)) and prior to the Closing Date, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationscondition, business, management, properties or prospects results of operations of the Company and its subsidiariessubsidiaries on a consolidated basis, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive Time of any amendment thereof), the Disclosure Package Sale Information and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(lh) Subsequent to the Execution Timeexecution of this Agreement and prior to the Closing Date, (i) there shall not have been any decrease downgrading in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities, by any “nationally recognized statistical rating organization,” as such term is defined by the Commission in Section 3(a)(62) of the Exchange Act or any public announcement by any such organization that it has under surveillance or review with possible negative implications, its rating of any of the Company’s debt securities (or proposed rating of the Securities).
(mi) If the Registration Statement and/or the offering of the Securities has been filed with the Financial Industry Regulatory Authority (“FINRA”) for review, FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(j) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled to the reasonable satisfaction of the Representatives when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the reasonable satisfaction of the Representatives and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this the manner described in Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date13 hereof.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Class B Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) Opinions and caused a negative assurance letter, each dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, each in form and substance reasonably satisfactory to the Representatives.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for (i) WTC, individually, and as Subordination Agent, Trustee and Loan Trustee and (ii) WTNA, as Escrow Agent, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit A hereto.
(3) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit B hereto.
(4) An opinion, dated as of the Closing Date, from King & Wood Mallesons, special Australian counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit C hereto.
(5) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit D hereto.
(6) An opinion, dated as the Closing Date, from in-house counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit E hereto.
(7) An opinion and a negative assurance letter, each dated as of the Closing Date, from Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Company Underwriters, each in form and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each of (iii) the Company and the Operating Partnership has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither Xxxxx’x Investors Service, a division of Ernst & Young LLP and Deloitte & Touche LLP Xxxxx’x Corp. nor Fitch Ratings, Inc. shall have furnished to downgraded the Representatives, at the request rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from KPMG LLP a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facility, the Class B Trust Agreement, the Escrow Agreement, the Deposit Agreement and the Note Purchase Agreement shall have been executed and delivered by each party thereto; providedthe representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such effect.
(g) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) The Class B Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) On the Closing Date, the Depositary shall have furnished to the Underwriters a certificate of the Depositary, signed by an officer of the Depositary, dated as of the applicable date, to the effect that the letter delivered representations and warranties of the Depositary contained in Section 1(b) hereof are true and correct with the same force and effect as though made on the such Closing Date shall use a “cut-off” date no more than three business days prior to such dateDate.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the The Company shall have furnished to the Representatives a letter substantially Underwriters and their counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the form purpose of Exhibit A hereto from each officer enabling such counsel to pass upon the matters referred to in subsection (b)(7) of this Section 4 and director in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company and each of theretofore to be performed, or the other persons listed on Schedule IV hereto addressed to the Representatives. If compliance with any of the conditions herein contained.
(k) The Company shall have obtained a Ratings Confirmation, as defined in the Intercreditor Agreement) in respect of the Class AA Certificates and the Class A Certificates. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of each of Price Waterhouse LLP and Xxxxxx Xxxxxxxx LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as execution and delivery of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)this Agreement, there shall not have been occurred (i) any change, or any development involving a prospective change, in or affecting particularly the condition business or properties of the Bank, Chase or The Chase Manhattan Corporation which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, Chase or The Chase Manhattan Corporation on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or otherwise)inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Representative shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement.
(e) The Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, special counsel to the Trust, with respect to the perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the Underwriters, such opinion or opinions, dated the Closing Date
(g) The Representative shall have received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and to the effect (a) that under current law the Notes will be characterized as debt, and the Trust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the qualifications set forth therein, the discussion set forth in the Prospectus Supplement under the caption "Certain Federal Income Tax Consequences" is an accurate summary of the United States federal income tax matters described therein.
(h) The Representative shall have received an opinion of Xxxxxx & Whitney LLP, counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the transactions contemplated by this Agreement. In rendering such opinions, counsel to the Indenture Trustee may rely on the opinion of the office of the general counsel to the Indenture Trustee.
(i) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, special counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement.
(j) The Class A-1 Notes shall have been rated "A-1+" by Standard & Poor's, P-1 by Xxxxx'x and "F-1+" by Fitch. The Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been rated "AAA" by Standard & Poor's, Aaa by Xxxxx'x and "AAA" by Fitch. The Certificates shall have been rated "A+" by Standard & Poor's, A2 by Xxxxx'x and "A+" and by Fitch.
(k) The Representative shall have received a certificate, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Bank in which such person, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Bank in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Bank has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iii) the representations and warranties of the Bank, as Seller and Servicer, in the Sale and Servicing Agreement and, as Depositor, in the Trust Agreement, are true and correct as of the dates specified in the Sale and Servicing Agreement and the Trust Agreement, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, (v) subsequent to the date of the Prospectus, there has been no material adverse change in the financial position or results of operations, business, properties or prospects operation of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, Bank's automotive finance business except as set forth in or contemplated in the Disclosure Package and by the Prospectus or as described in such certificate and (exclusive of any amendment or supplement theretovi) the effect Prospectus does not contain any untrue statement of which isa material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the sole judgment light of the Representativescircumstances in which they were made, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)not misleading.
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to On the Closing Date, the Company, the Operating Partnership and the Selling Stockholders $30,620,164.79 aggregate amount of Certificates shall have furnished been issued and sold pursuant to the Representatives Certificate Underwriting Agreement. The Bank will furnish the Representative, or cause the Representative to be furnished, with such further informationnumber of conformed copies of such opinions, certificates certificates, letters and documents as the Representatives may Representative reasonably requestrequests.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Stockholder made in any opinions, certificates and letters pursuant to the provisions hereof or required to be delivered pursuant to Section 3 hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditionsconditions as of the Closing Date and any settlement date pursuant to Section 3 hereof:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iletter, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(c) The Selling Stockholders Stockholder shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersStockholder, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIand letter, dated the Closing Date, Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(d) [Reserved]The General Counsel of the Company, shall have furnished to the Representatives his opinion letter, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, requested and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of caused Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request of Execution Time and at the CompanyClosing Date, a letter, dated respectively as of the respective dates Execution Time and as of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesClosing Date, containing such statements and information of the type customarily as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference disclosure contained in the Registration Statement, the General Disclosure Package and the Prospectus; provided, that in form and substance satisfactory to the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateRepresentatives.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Rule 3(a)(62) under the Securities Exchange Act of 1934) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The 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 Representatives.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from the Selling Stockholder and each officer and director of the Company and each of named in the other persons listed on Schedule IV hereto Registration Statement addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, at 0000 Xxxx Xxxxx Xxxxxx, Xxx XxxxSuite 1100, XX 00000Dallas, Texas 75201, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Building Products, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Class B Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) Opinions and caused a negative assurance letter, each dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, each in form and substance reasonably satisfactory to the Representatives.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for (i) WTC, individually, and as Subordination Agent, Trustee and Loan Trustee and (ii) WTNA, as Escrow Agent, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit A hereto.
(3) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit B hereto.
(4) An opinion, dated as of the Closing Date, from in-house counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit C hereto.
(5) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit D hereto.
(6) An opinion, dated as the Closing Date, from in-house counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit E hereto.
(7) An opinion and a negative assurance letter, each dated as of the Closing Date, from Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Company Underwriters, each in form and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each of (iii) the Company and the Operating Partnership has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither Xxxxx’x Investors Service, a division of Xxxxx’x Corp. nor Fitch Ratings, Inc. shall have downgraded the rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided, that .
(f) Promptly after the letter delivered on execution of this Agreement and also at the Closing Date Time, the Underwriters shall use have received from KPMG LLP a letter or letters, dated as of the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “cut-offcomfort letters” date no more than three business days prior to underwriters with respect to certain financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(g) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facility, the Class B Trust Agreement, the Escrow Agreement, the Deposit Agreement and the Note Purchase Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such dateeffect.
(h) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(i) The Class B Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions On each of the Tax Equity date hereof and Fiscal Responsibility Act of 1982 with respect on the Closing Date, the Depositary shall have furnished to the transactions herein contemplatedUnderwriters a certificate of the Depositary, such Selling Stockholder will deliver signed by an officer of the Depositary, dated as of the applicable date, to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations effect set forth in lieu thereof)Schedule III hereto.
(k) Subsequent The Company shall have furnished to the Execution Time orUnderwriters and their counsel, if earlierin form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the purpose of enabling such counsel to pass upon the matters referred to in subsection (b)(7) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the dates as of which information is given in the Registration Statement (exclusive performance of any amendment thereof) and covenant by the Prospectus (exclusive of any supplement thereto), there shall not have been any changeCompany theretofore to be performed, or the compliance with any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)conditions herein contained.
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s On or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior prior to the Closing Date, the Company, the Operating Partnership Class AA Certificates and the Selling Stockholders Class A Certificates shall have furnished been duly issued. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Representatives such further information, certificates Underwriters and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representativestheir counsel. If any of the conditions condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofand the applicable settlement date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement, the Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriters shall have requested received on the Closing Date and caused Xxxxx Lovells US any settlement date an opinion of Xxxx Xxxxxxx & Xxxxxx LLP, outside counsel for the Company and the Operating Partnership, to have furnished dated such date, with respect to the Representatives their matters identified in Exhibit A. The opinion and letter substantially of Xxxx Xxxxxxx & Xxxxxx LLP described in the form attached hereto as Annex I, dated the Closing Date and addressed Exhibit A shall be rendered to the RepresentativesUnderwriters at the request of the Company and shall so state therein. In giving the opinion with respect to the matters identified in Exhibit A, Xxxx Xxxxxxx & Xxxxxx LLP may rely, as to all matters governed by Maryland law, upon the opinion of Xxxx Xxxxx LLP referred to in Section 6(c) below.
(c) The Selling Stockholders Underwriters shall have requested received on the Closing Date and caused Xxxxxxx Xxxxxxx & Xxxxxxxx any settlement date an opinion of Xxxx Xxxxx LLP, Maryland counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IICompany, dated the Closing Datesuch date, and addressed with respect to the Representativesmatters identified in Exhibit B hereto. The opinion of Xxxx Xxxxx LLP described in Exhibit B shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date and any settlement date an opinion of [Reserved—], outside counsel for the Manager, dated such date, with respect to the matters identified in Exhibit C. The opinion of [—] described in Exhibit C shall be rendered to the Underwriters at the request of the Manager and shall so state therein.
(e) The Representatives Underwriters shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx on the Closing Date and any settlement date an opinion of Sidley Austin LLP, counsel for the Underwriters, dated such date, in the form and substance reasonably satisfactory to the Underwriters. In giving such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents may rely, as they request for to all matters governed by Maryland law, upon the purpose opinion of enabling them Xxxx Xxxxx LLP referred to pass upon such mattersin Section 6(c) above.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyCompany on the Closing Date and any settlement date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Datesuch date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, such date with the same effect as if made on such date, date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Company Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(g) The Company Manager shall have furnished to the Representatives on the Closing Date and any settlement date a certificate of the Company, signed by the Chief Executive Officer and Chief Financial Officer of the CompanyManager, dated the date hereofsuch date, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Selling Stockholder Manager in this Agreement are true and correct on and as of the Closing Date, such date with the same effect as if made on such date; and
(ii) date and the Selling Stockholder Manager has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; and
(ii) since the Closing Daterespective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there has been no Manager Material Adverse Effect.
(ih) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of Ernst & Young LLP and used its commercially reasonable efforts to have caused Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date and each settlement date, letters, dated respectively as of the Company, a letter, dated the respective dates Execution Time and as of delivery thereof and addressed to the Underwriterseach such date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference of the Company, contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (A) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (B) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (A) or (B) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nk) The Securities shall have been approved for listing on the NYSE, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A D-1 hereto from each officer and director of the Company listed in Exhibit D-2 hereto and each of the other persons listed on Schedule IV hereto addressed to the Representatives.
(m) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and the arrangements relating to the offering of the Securities. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx Sidley Austin LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the each Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Altisource Residential Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Stockholder contained herein as of the Execution Time, execution and delivery of this Agreement and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused (i) Xxxxx Lovells US Xxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives and the Selling Stockholder their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested Representatives and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersStockholder, substantially to the effect set forth in Exhibit B and (ii) internal counsel of the Company to have furnished to the Representatives their opinion substantially in and the form attached hereto as Annex IISelling Stockholder his opinion, dated the Closing Date, Date and addressed to the Representatives.Representatives and the Selling Stockholder, substantially to the effect set forth in Exhibit C.
(d) [Reserved].
(ec) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and President, any Vice President, the Chief Financial Officer Officer, the Chief Accounting Officer, the General Counsel, the Controller or any Deputy Controller and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has not been no any change or development that, individually or in the aggregate, has or would have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ge) The Company shall have furnished requested and caused Deloitte & Touche LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of and the Selling Stockholder, dated on the date hereof and at the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties customary “comfort letters,” dated respectively as of the Selling Stockholder in this Agreement are true and correct on date hereof and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, Date in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package Representatives and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateSelling Stockholder.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kf) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) thereof after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any amendment before the date of this Agreement), the Preliminary Prospectus and the Prospectus (exclusive of any supplement theretothereto after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any supplement before the date of this Agreement), there shall not have been any change, or any development involving a prospective changethat, in individually or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessaggregate, has or would be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the RepresentativesRepresentatives after consultation with the Company, 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 Prospectus (exclusive of any amendment thereofthereof after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any amendment before the date of this Agreement), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mg) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nh) At or prior Subsequent to the Execution Applicable Time, there shall not have been any decrease in the Company rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have furnished been duly listed, subject to notice of issuance, on the New York Stock Exchange, and evidence thereof shall have been provided to the Representatives.
(j) Prior to the date of this Agreement, the Representatives a letter substantially in the form of Exhibit A hereto shall have received executed Lock-up Agreements from each officer and director of the Company and each of the other persons parties listed on Schedule IV Annex B hereto addressed to (the Representatives“Locked-Up Parties”). If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx 000 Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of ___________________ verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, Chase or The Chase Manhattan Corporation which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, Chase or X.X. Xxxxxx Xxxxx & Co. on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx Wood LLP, counsel for to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesNotes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipBank, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus Date and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives effect (a) that under current law the Notes will be characterized as debt, and counsel the Trust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the Underwritersqualifications set forth therein, this Agreement the statements made in the Prospectus Supplement under the caption "Material Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal tax law and all obligations regulations or legal conclusions with respect thereto, constitute accurate summaries of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing DateUnited States federal income tax matters described therein.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Stockholder made in any opinions, certificates and letters pursuant to the provisions hereof or required to be delivered pursuant to Section 3 hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditionsconditions as of the Closing Date and any settlement date pursuant to Section 3 hereof:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iletter, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(c) The Selling Stockholders Stockholder shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersStockholder, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIand letter, dated the Closing Date, Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(d) [Reserved]Xxxxxxx X. Power, General Counsel of the Company, shall have furnished to the Representatives his opinion letter, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, signed by an officer of, or other authorized person on behalf of, the general partner of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date; and
(ii) the Closing Date and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ih) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of caused Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request of Execution Time and at the CompanyClosing Date, a letter, dated respectively as of the respective dates Execution Time and as of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesClosing Date, containing such statements and information of the type customarily as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference disclosure contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that in form and substance satisfactory to the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateRepresentatives.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lj) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act)) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and (ii) no satisfactory evidence of such organization actions shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of been provided to the Company’s debt securitiesRepresentatives.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from the Selling Stockholder and each officer and director of the Company and each of named in the other persons listed on Schedule IV hereto Registration Statement addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, at 0000 Xxxx Xxxxx Xxxxxx, Xxx XxxxSuite 1100, XX 00000Dallas, Texas 75201, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Building Products, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) An opinion and caused negative assurance letter, dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, in form reasonably satisfactory to the Representatives substantially in the form of Exhibit A hereto.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for the Company WTC, individually, and the Operating Partnershipas Subordination Agent, to have furnished Trustee and Loan Trustee, in form and substance reasonably satisfactory to the Representatives their opinion and letter substantially to the effect set forth in the form attached hereto as Annex IExhibit B hereto.
(3) An opinion, dated as of the Closing Date Date, from (i) Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel for the Liquidity Provider, and addressed (ii) Xx Xxxxxxx Brocas Xxxxxx X.X.X.X.X., special French counsel for the Liquidity Provider, each in form and substance satisfactory to the Representatives, substantially to the effect set forth in Exhibits C-1 and C-2 hereto, respectively.
(c4) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx LLP, counsel for the Selling StockholdersWTNA, to have furnished as Escrow Agent, in form and substance satisfactory to the Representatives their opinion Representatives, substantially to the effect set forth in the form attached hereto as Annex IIExhibit B hereto.
(5) An opinion, dated as of the Closing Date, from (i) Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel for the Depositary, and addressed (ii) De Pardieu Brocas Xxxxxx X.X.X.X.X., special French counsel for the Depositary, each in form and substance reasonably satisfactory to the RepresentativesRepresentatives and substantially to the effect set forth in Exhibit C-1 and C-2 hereto, respectively.
(d6) [Reserved].
(e) The Representatives shall have received An opinion and negative assurance letter, dated as of the Closing Date, from SkaddenMilbank, ArpsTweed, Slate, Xxxxxxx Xxxxxx & Xxxx XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed including to the Representativeseffect that the opinions delivered pursuant to subsections (b)(1) through (b)(5) of this Section 4 appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by the Representatives and with respect to the issuance and sale of the SecuritiesCertificates, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives you may reasonably require.
(c) At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and the Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the Operating Partnership earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives received a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each of (iii) the Company and the Operating Partnership has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither Fitch Ratings, Inc. (“Fitch”) nor Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business (“S&P”) shall have downgraded the rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided, that .
(f) Promptly after the letter delivered on execution of this Agreement and also at the Closing Date Time, the Underwriters shall use have received from KPMG LLP a letter or letters, dated as of the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “cut-offcomfort letters” date no more than three business days prior to underwriters with respect to certain financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(g) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facilities, the Trust Agreements, the Escrow Agreements, the Deposit Agreements and the Note Purchase Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such dateeffect.
(h) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(i) The Class A Certificates and the Class B Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 1 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the The Company shall have furnished to the Representatives a letter substantially Underwriters and their counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the form purpose of Exhibit A hereto from each officer enabling such counsel to pass upon the matters referred to in subsection (b)(6) of this Section 4 and director in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company and each of theretofore to be performed, or the other persons listed on Schedule IV hereto addressed to the Representatives. If compliance with any of the conditions herein contained. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) An opinion and caused a negative assurance letter, each dated as of the Closing Date, of Debevoise & Xxxxxxxx LLP, as counsel for the Company, each in form reasonably satisfactory to the Representatives and substantially in the form of Exhibit A hereto.
(2) An opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxx, General Counsel to the Company, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit B hereto
(3) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for Wilmington, individually, and as Subordination Agent, Trustee and Loan Trustee, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit C hereto.
(4) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit D hereto.
(5) An opinion, dated as of the Closing Date, from Xxxxx Xxxxxxxx, General Counsel to the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit E hereto.
(6) An opinion and negative assurance letter, dated as of the Closing Date, from Milbank LLP, counsel for the Company Underwriters, each in form and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Officer, Chief Financial Officer or any Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each (iii) the Company has complied in all material respects with all of the Company and the Operating Partnership has complied with all the agreements applicable to it contemplated herein and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither nationally recognized statistical rating organization that has been requested by the Company to rate the Certificates shall have downgraded the rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(jf) In order to document At the Underwriters’ compliance with the reporting and withholding provisions Closing Time, each of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlierIntercreditor Agreement, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Liquidity Facilities and the Prospectus (exclusive of any supplement thereto), there Trust Agreements shall not have been any change, or any development involving a prospective change, in or affecting executed and delivered by each party thereto; the condition (financial or otherwise), results of operations, business, properties or prospects representations and warranties of the Company and its subsidiaries, taken contained in such agreements shall be accurate as a whole, whether or not arising from transactions in of the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Closing Time and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment Underwriters shall have received a certificate of the RepresentativesChief Executive Officer, so material and adverse as to make it impractical Chief Financial Officer or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any Vice President of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (, dated as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, to such effect.
(g) Promptly after the Companyexecution of this Agreement and also at the Closing Time, each of the Operating Partnership and the Selling Stockholders Appraisers shall have furnished to the Representatives Underwriters a letter from such further informationAppraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) Each class of Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) The Company shall have furnished to the Underwriters and their counsel, in form and substance satisfactory to them, such other documents, certificates and documents opinions as the Representatives such counsel may reasonably requestrequest for the purpose of enabling such counsel to pass upon the matters referred to in subsection (b)(6) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(nj) At or prior to the Execution Closing Time, the Company each Indenture and each Participation Agreement shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer been duly executed and director of delivered by the Company and each of the other persons listed on Schedule IV hereto addressed respective party thereto, and copies thereof shall have been furnished to the RepresentativesUnderwriters and their counsel. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any of the conditions condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) Opinions and caused a negative assurance letter, each dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, each in form and substance reasonably satisfactory to the Representatives.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for (i) WTC, individually, and as Subordination Agent, Trustee and Loan Trustee and (ii) WTNA, as Escrow Agent, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit A hereto.
(3) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxxxx & Xxxx LLP, special New York counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit B hereto.
(4) An opinion, dated as of the Closing Date, from King & Wood Mallesons, special Australian counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit C hereto.
(5) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxxxx & Xxxx LLP, special New York counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit D hereto.
(6) An opinion, dated as the Closing Date, from in-house counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit E hereto.
(7) An opinion and a negative assurance letter, each dated as of the Closing Date, from Milbank LLP, counsel for the Company Underwriters, each in form and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each (iii) the Company has complied in all material respects with all of the Company and the Operating Partnership has complied with all the agreements applicable to it contemplated herein and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each of Ernst & Young LLP and Deloitte & Touche LLP neither nationally recognized statistical rating organization that has been requested by the Company to rate the Certificates, shall have furnished to downgraded the Representatives, at the request rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from KPMG LLP a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facilities, the Trust Agreements, the Escrow Agreements, the Deposit Agreements and the Note Purchase Agreement shall have been executed and delivered by each party thereto; providedthe representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such effect.
(g) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) Each class of Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectuses identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) On the Closing Date, the Depositary shall have furnished to the Underwriters a certificate of the Depositary, signed by an officer of the Depositary, dated as of the applicable date, to the effect that the letter delivered representations and warranties of the Depositary contained in Section 1(b) hereof are true and correct with the same force and effect as though made on the such Closing Date shall use a “cut-off” date no more than three business days prior to such dateDate.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the The Company shall have furnished to the Representatives a letter substantially Underwriters and their counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the form purpose of Exhibit A hereto from each officer enabling such counsel to pass upon the matters referred to in subsection (b)(7) of this Section 4 and director in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company and each of theretofore to be performed, or the other persons listed on Schedule IV hereto addressed to the Representatives. If compliance with any of the conditions herein contained. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company Company, BPG Subsidiary, the Operating Partnership and the Operating PartnershipSelling Stockholders, to have furnished to the Representatives Representative their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date Date, and addressed to the RepresentativesRepresentative.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Maryland counsel for the Selling StockholdersCompany, to have furnished to the Representatives Representative their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the RepresentativesRepresentative.
(d) [Reserved].
(e) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company Company, BPG Subsidiary and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of BPG Subsidiary and the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company Company, BPG Subsidiary and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company Company, BPG Subsidiary and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company Company, BPG Subsidiary and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives Representative a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives Representative to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, Agreement and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the RepresentativesRepresentative, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the RepresentativesRepresentative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, BPG Subsidiary, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives[Reserved]. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Brixmor Property Group Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) An opinion and caused negative assurance letter, dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, in form reasonably satisfactory to the Representative and substantially in the form of Exhibit A hereto.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for the Company WTC, individually, and the Operating Partnershipas Subordination Agent, to have furnished Trustee and Loan Trustee, in form and substance reasonably satisfactory to the Representatives their opinion Representative and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the Representativesof Exhibit B hereto.
(c3) The Selling Stockholders shall have requested and caused An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special New York counsel for the Selling StockholdersLiquidity Provider, to have furnished in form and substance reasonably satisfactory to the Representatives their opinion Representative and substantially in the form attached hereto as Annex IIof Exhibit C hereto.
(4) An opinion, dated as of the Closing Date, from Xxxxx Xxxxxxx, in-house counsel for the Liquidity Provider, in form and addressed substance reasonably satisfactory to the RepresentativesRepresentative and substantially in the form of Exhibit D hereto.
(d5) [Reserved].
(e) The Representatives shall have received An opinion and negative assurance letter, dated as of the Closing Date, from SkaddenMilbank, ArpsTweed, Slate, Xxxxxxx Xxxxxx & Xxxx XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed including to the Representativeseffect that the opinions delivered pursuant to subsections (b)(1) through (b)(4) of this Section 4 appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by the Representative and with respect to the issuance and sale of the SecuritiesCertificates, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives you may reasonably require.
(c) At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and the Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the Operating Partnership earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives received a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each of (iii) the Company and the Operating Partnership has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither Xxxxx’x Investors Service, a division of Xxxxx’x Corp. nor Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business shall have downgraded the rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the RepresentativesRepresentative, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided, that .
(f) Promptly after the letter delivered on execution of this Agreement and also at the Closing Date Time, the Underwriters shall use have received from KPMG LLP a letter or letters, dated as of the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “cut-offcomfort letters” date no more than three business days prior to underwriters with respect to certain financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(g) At the Closing Time, each of the Intercreditor Agreement, the Liquidity Facilities, the Trust Agreements and the Note Purchase Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such dateeffect.
(h) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(i) Each class of Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the The Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives Underwriters and their counsel, in form and substance satisfactory to them, such further informationother documents, certificates and documents opinions as the Representatives such counsel may reasonably requestrequest for the purpose of enabling such counsel to pass upon the matters referred to in subsection (b)(5) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(nk) At or prior to the Execution Closing Time, each Indenture, the Company Note Purchase Agreement and each Participation Agreement shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer been duly executed and director of delivered by the Company and each of the other persons listed on Schedule IV hereto addressed respective party thereto, and copies thereof shall have been furnished to the RepresentativesUnderwriters and their counsel. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any of the conditions condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and the Selling Stockholders Guarantor contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company Issuer and the Selling Stockholders Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantor of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company Issuer and the Guarantor pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bi) The Company Issuer and the Guarantor shall have requested and caused Xxxxx Lovells Xxxxxxx US LLP, counsel for the Company Issuer and the Operating PartnershipGuarantor, to have furnished to the Representatives their opinion opinion, dated the Closing Date and letter substantially addressed to the Representatives in the form attached hereto as Annex IExhibit A.
(ii) The Issuer and the Guarantor shall have requested and caused Xxxxx Xxxxxxx US LLP, counsel for the Issuer and the Guarantor, to have furnished to the Representatives their letter, dated the Closing Date and addressed to the Representatives., with respect to the content of the Disclosure Package and the Registration Statement in the form attached hereto as Exhibit B.
(ciii) The Selling Stockholders Issuer and the Guarantor shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxx xxx xxx Xxxxx, counsel as Chief Legal Officer for the Selling StockholdersGuarantor, to have furnished to the Representatives their opinion substantially her opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.Exhibit C.
(d) [Reserved].
(ec) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesNotes, the Guarantees, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuer and the Operating Partnership Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fd) The Company Each of the Issuer and the Guarantor shall have furnished to the Representatives a certificate of the CompanyIssuer and the Guarantor, as applicable, signed by the President and Chief Executive Officer of the Issuer or the Guarantor, as applicable, or any Executive Vice President or Senior Vice President, and the Chief Financial Officer or Chief Accounting Officer of the CompanyIssuer or the Guarantor, and by executive officers of the Operating Partnershipas applicable, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the SecuritiesNotes, and this Agreement and that:
(i) the representations and warranties of the Company Issuer (or, in the case of the Guarantor, the Issuer and the Operating Partnership Guarantor) in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such datethe Closing Date and the Issuer (or, and each in the case of the Company Guarantor, the Issuer and the Operating Partnership has Guarantor) have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Issuer’s knowledge (or, in the case of the Company Guarantor, the Issuer’s and the Operating PartnershipGuarantor’s knowledge), threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ge) The Company Issuer and the Guarantor shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, requested and addressed to the Representatives to the effect that:
(i) the representations caused Deloitte and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements relating to the Guarantor and its subsidiaries, and certain financial information included contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter letters delivered on the date of this Agreement and on the Closing Date Date, as the case may be, shall use a “cut-off” date no more than three business days prior to such datethe date of this Agreement or the Closing Date, as the case may be.
(jf) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)[Reserved.]
(kg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company Guarantor and its subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(lh) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Issuer, or of or guaranteed by the Guarantor by any “nationally recognized statistical rating organization” (as defined in for purposes of Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Issuer and the Selling Stockholders Guarantor shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders Issuer or the Guarantor in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing DateDate or as otherwise specified in Section 6.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any Settlement Date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement, including any 462(b) Registration Statement, shall have become effective; the Prospectus, and any supplement thereto, have been will be filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iits opinions, dated the Closing Date and addressed to the Representatives, substantially in the forms attached hereto as Exhibits B and C, and Xxxxxxxx X. Xxxxxxx, General Counsel of the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit D.
(c) The Company shall have requested and caused (i) Xxxxx Xxxx & Xxxxxxxx, special regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit E and (ii) (A) Xxxxxx & Xxxxxxxx P.C., and (B) Xxxxxxxx & Xxxxxxx LLP, special intellectual property counsels for BML and the Company, respectively, to have furnished to the Representatives their opinions, each dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit F .
(cd) The Selling Stockholders shall have requested and caused Xxxxx X. Xxxxxxx XX, Esq., Kleinberg, Kaplan, Xxxxx & Xxxxx and Skadden, Arps, Slate, Xxxxxxx & Xxxxxxxx LLP, Xxxx LLP and such other counsel for to the Selling StockholdersStockholders as are reasonably acceptable to the Representatives, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, respective opinions dated the Closing Date, Date and addressed to the Representatives.
(d) [Reserved]., covering the matters specified in Exhibit G.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Debevoise & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageProspectus, any supplements to the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company Selling Stockholders shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate on behalf of the Selling StockholderStockholders and delivered pursuant to the Custody Agreement, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the Selling Stockholder Stockholders in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ih) On The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the date of this AgreementRepresentatives letters, at the Execution Time and on at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements substantially in the same form and information substance as the letters furnished by them in connection with the November 2004 offering of common stock by certain selling stockholders of the type customarily included in accountants’ “comfort letters” to underwriters Company (and, with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on dated the Closing Date shall use a “cut-off” date no more than three business days prior Date, in connection with the June 2004 offering of common stock by certain selling stockholders), updated accordingly to cover periods subsequent to such dateoffering to the satisfaction of the Underwriters.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesJoint Managers, acting jointly, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, customary closing and secretary certificates and documents as the Representatives may reasonably request, including, without limitation, Forms W-8 or W-9, as required, from the Selling Stockholders.
(nk) At or prior The Securities shall have been duly approved for quotation on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from Endo Pharma LLC and each executive officer and director of the Company and each of the other persons listed on Schedule IV hereto Company, addressed to the Representatives. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the UnderwritersCompany, at Xxxx 0 Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Endo Pharmaceuticals Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Initial Securities and any applicable Option Securities on the Initial Closing Date or any Option Securities on any Additional Closing Date, as the case may be, pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders Guarantor contained herein as of the Execution Timedate hereof, the Initial Closing Date pursuant to Section 4 hereofand as of any such Additional Closing Date, as the case may be, to the accuracy of the statements of the officers of the Company and the Selling Stockholders Guarantor made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company and the Guarantor of its their respective covenants and other obligations hereunder and to the following additional conditions:
(a) The Prospectus, At the Initial Closing Date and any supplement theretosuch Additional Closing Date, have been filed in as the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and case may be, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Initial Closing Date and any such Additional Closing Date, as the case may be, the Underwriters shall have requested received:
(1) Opinions and caused Xxxxx Lovells US a negative assurance letter, dated as of the Initial Closing Date and each such Additional Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company and the Operating PartnershipGuarantor, to have furnished in form and substance reasonably satisfactory to the Representatives their opinion and letter substantially in the form attached hereto as Annex IRepresentatives.
(2) An opinion, dated as of the Initial Closing Date and addressed each such Additional Closing Date, of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as regulatory counsel for the Company and the Guarantor, in form and substance reasonably satisfactory to the Representatives.
(3) An opinion and negative assurance letter, dated as of the Initial Closing Date and each Additional Closing Date, of Milbank LLP, as counsel for the Underwriters, with respect to such matters as may be reasonably requested by the Representatives.
(c) The Selling Stockholders shall have requested At the Initial Closing Date and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the each Additional Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole, or in the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, and the Underwriters shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale a certificate of the SecuritiesPresident, the Registration Statementan Executive Vice President, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and a Senior Vice President or a Vice President of the Company and the Operating Partnership shall have furnished to such counsel such documents Guarantor, dated as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Initial Closing Date or Additional Closing Date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership Guarantor, as applicable, contained in this Agreement Section 1 hereof are true and correct on with the same force and effect as of though made at the Initial Closing Date or such Additional Closing Date, with the same effect as if made on such dateapplicable, and (iii) each of the Company and the Operating Partnership Guarantor has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or before the Initial Closing Date and each Additional Closing Date, as applicable.
(d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or any Additional Closing Date;
(ii) no stop order suspending , neither Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business nor Xxxxx’x Investor Service, Inc. shall have downgraded the effectiveness rating accorded the Company or the Guarantor of any of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate securities of the Company, signed by the Chief Financial Officer Guarantor or any of their respective subsidiaries (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the Company, dated near future.
(e) On the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Initial Closing Date and each Additional Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and shall have received from KPMG LLP a letter or letters, dated as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to the underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided.
(f) At the Initial Closing Date, that each of the letter Indenture and the Securities shall have been duly executed and delivered by the Company and the Guarantor, as applicable.
(g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Representatives and certain officers and directors of the Company listed in Exhibit C 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 Initial Closing Date or Additional Closing Date, as the case may be.
(h) The Exchange has completed its review of a Listing of Additional Shares application concerning the Underlying Securities and has not provided comments.
(i) The Underwriters shall use have received a “cut-off” letter, dated as of the date no more than three business days prior hereof and each Closing Date, from the Chief Financial Officer of the Company, in a form and substance reasonably satisfactory to such datethe Representatives.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) The Company and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Guarantor shall have furnished to the Representatives and their counsel, in form and substance satisfactory to them, such further informationother documents, certificates and documents opinions as the Representatives such counsel may reasonably request.
request for the purpose of enabling such counsel to pass upon the matters referred to in subsection (nb)(3) At of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or prior to the Execution Timestatements, the Company shall have furnished to the Representatives a letter substantially in the form performance of Exhibit A hereto from each officer and director of any covenant by the Company and each of the other persons listed on Schedule IV hereto addressed Guarantor theretofore to be performed, or the Representatives. If compliance with any of the conditions herein contained. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Representatives and their counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for default by the Underwriters, this Agreement and all obligations of the Underwriters hereunder such failure to fulfill a condition may be canceled at, or at any time prior to, the Closing Date waived by the Representatives. Notice of such cancellation shall , or this Agreement may be given terminated by the Representatives by notice to the Company and Selling Stockholders the Guarantor at any time at or prior to the Initial Closing Date, or, in writing or by telephone or facsimile confirmed in writing. The documents required the case of the Option Securities, prior to be delivered by this Section 7 any Additional Closing Date, and such termination shall be delivered at the office without liability of Skaddenany party to any other party, Arpsexcept as provided in Sections 5, Slate7 and 9 hereof, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Datewhich provisions shall remain in effect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Class A Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company's officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) An opinion and caused a negative assurance letter, each dated as of the Closing Date, of Debevoise & Xxxxxxxx LLP, as counsel for the Company, each in form reasonably satisfactory to the Representative.
(2) An opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxx, General Counsel to the Company, in form and substance reasonably satisfactory to the Representative.
(3) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for the Company Wilmington, individually, and the Operating Partnershipas Subordination Agent, to have furnished Trustee and Loan Trustee, in form and substance reasonably satisfactory to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the RepresentativesRepresentative.
(c4) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIAn opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and addressed substance reasonably satisfactory to the RepresentativesRepresentative.
(d5) [Reserved]An opinion, dated as of the Closing Date, from Christian Le Hir, General Counsel to the Liquidity Provider, in form and substance reasonably satisfactory to the Representative.
(e6) The Representatives shall have received An opinion and negative assurance letter, dated as of the Closing Date, from Skadden, Arps, Slate, Xxxxxxx & Xxxx Milbank LLP, counsel for the Underwriters, such opinion or opinions, dated each in form and substance reasonably satisfactory to the Representative.
(c) At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the RepresentativesFinal Prospectus, with respect to any material adverse change in the issuance and sale condition, financial or otherwise, of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and its subsidiaries considered as one enterprise, or in the Operating Partnership earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives received a certificate of the Company, signed by the Chief Executive Officer and the Officer, Chief Financial Officer or any Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each (iii) the 16 Company has complied in all material respects with all of the Company and the Operating Partnership has complied with all the agreements applicable to it contemplated herein and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or before the Closing Date.
(d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date;Time, neither nationally recognized statistical rating organization that has been requested by the Company to rate the Class A Certificates shall have downgraded the rating accorded any of the Company's securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(iie) no stop order suspending Promptly after the effectiveness execution of this Agreement and also at the Closing Time, the Underwriters shall have received from Ernst & Young LLP a letter or letters, dated as of the Registration Statement or any notice objecting to its use has been issued respective dates of delivery thereof, in form and no proceedings for that purpose have been instituted or, substance reasonably satisfactory to the knowledge Representative, containing statements and information of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent type ordinarily included in accountants' "comfort letters" to underwriters with respect to certain financial statements included and certain financial information contained or incorporated by reference in the General Disclosure Package and the Prospectus Final Prospectus.
(exclusive f) At the Closing Time, each of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration StatementIntercreditor Agreement, the Disclosure Package Liquidity Facility and the Prospectus (exclusive Trust Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the Chief Executive Officer, Chief Financial Officer or any supplement thereto)Vice President of the Company, dated as of the Closing Date, to such effect.
(g) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) Each class of Class A Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, Underwriters and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriterstheir counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representatives, containing statements purpose of enabling such counsel to pass upon the matters referred to in subsection (b)(6) of this Section 4 and information in order to evidence the accuracy and completeness of any of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included representations, warranties or incorporated by reference in the Registration Statementstatements, the Disclosure Package and performance of any covenant by the Prospectus; providedCompany theretofore to be performed, that or the letter delivered on compliance with any of the Closing Date shall use a “cut-off” date no more than three business days prior to such dateconditions herein contained.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Closing Time, the Company each Indenture and each Participation Agreement shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer been duly executed and director of delivered by the Company and each other respective party thereto, and copies thereof shall have been furnished to the Underwriters and their counsel, and the representations and warranties of the other persons listed on Schedule IV hereto addressed Company contained in such agreements shall be accurate as of the Closing Time. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the RepresentativesUnderwriters and their counsel. If any of the conditions condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and the Selling Stockholders Guarantors contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company Issuer and the Selling Stockholders Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantors of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(ii) hereof, and any other material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Issuer shall have requested and caused Xxxxx Lovells US Xxxx, Gotshal & Xxxxxx LLP, U.S. counsel and Xxxx, Gotshal & Xxxxxx (London) LLP, U.K. counsel for the Company and the Operating Partnershipcertain Guarantors, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iletter, dated the Closing Date and addressed to the Representatives, in the forms set forth on Annexes A-I and A-II hereto with respect to U.S. counsel and in a form reasonably satisfactory to the Underwriters, with respect to the opinion of U.K. counsel.
(c) The Selling Stockholders Issuer shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, Irish counsel for the Selling StockholdersWTW and Xxxxxx Xxxxxx Xxxxxx Sub Holdings Unlimited Company, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives, in the form set forth on Annex B hereto.
(d) The Issuer shall have requested and caused Xxxxx & XxXxxxxx Amsterdam N.V., Dutch counsel for Xxxxxx Netherlands Holdings B.V., to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form set forth on Annex C hereto.
(e) [Reserved].
(ef) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuer and the Operating Partnership Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fg) The Company Issuer shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Xxxxxx Xxxxxxx and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipXxxxxxx Xxxxxx, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplements to the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i1) the representations and warranties of the Company Issuer and the Operating Partnership Guarantors in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, and each of the Company Closing Date and the Operating Partnership has Issuer and the Guarantors have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii2) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipIssuer, threatened; and
(iii3) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no event or development that has had, or that would reasonably be expected to have, a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder The Issuer shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, requested and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and caused Deloitte & Touche LLP shall to have furnished to the Representatives, (i) at the request Execution Time, a letter dated as of the Company, a letter, dated the respective dates of delivery thereof and addressed to the UnderwritersExecution Time, in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to WTW within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included contained in or incorporated by reference in into the Registration StatementPreliminary Prospectus and Disclosure Package, the Disclosure Package and the Prospectus; provided, that the which letter delivered on the Closing Date shall use a “cut-offoff date” not earlier than three business days prior to the Execution Time, and (ii) at the Closing Date, a “bring down” comfort letter dated as of the Closing Date, in form and substance satisfactory to the Representatives, that reaffirms the statements made in the letter pursuant to subclause (i) of this Section 6(h), except that the specified cut-off date no referred to shall be a date not more than three business days prior to such datethe Closing Date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change, change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change or any development involving that can be expected to have a prospective change, in or affecting material adverse effect on the condition (financial or otherwise), business prospects or results of operations, business, properties or prospects operations of the Company WTW and its subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Issuer and the Selling Stockholders Guarantors shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(nk) At or prior Subsequent to the Execution Time, there shall not have been any decrease in the Company rating of debt securities of WTW or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined in section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) At the Execution Time and on the Closing Date, the Representatives shall have furnished to received a written certificate executed by the Representatives a letter substantially Chief Financial Officer of WTW, in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed substance reasonably satisfactory to the Representatives, with respect to certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Xxx Xxxx 00000 on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Class C(R) Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) Opinions and caused a negative assurance letter, each dated as of the Closing Date, of Xxxxxx & Xxxxxxx LLP, as counsel for the Company, each in form and substance reasonably satisfactory to the Representatives.
(2) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for (i) WTC, individually, and as Subordination Agent, Trustee and Loan Trustee and (ii) WTNA, as Escrow Agent, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit A hereto.
(3) An opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit B hereto.
(4) An opinion, dated as of the Closing Date, from in-house counsel for the Depositary, in form and substance reasonably satisfactory to the Representatives and substantially in the form of Exhibit C hereto.
(5) An opinion and a negative assurance letter, each dated as of the Closing Date, from Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Company Underwriters, each in form and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives Final Prospectus, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the CompanyPresident, signed by the Chief an Executive Officer and the Chief Financial Officer Vice President, a Senior Vice President or a Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each of (iii) the Company and the Operating Partnership has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to before the Closing Date.
(id) On Subsequent to the date execution and delivery of this Agreement, Agreement and on prior to the Closing DateTime, each neither Xxxxx’x Investors Service, a division of Ernst & Young LLP and Deloitte & Touche LLP Xxxxx’x Corp. nor Fitch Ratings, Inc. shall have furnished to downgraded the Representatives, at the request rating accorded any of the Company’s securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(e) Promptly after the execution of this Agreement and also at the Closing Time, the Underwriters shall have received from KPMG LLP a letterletter or letters, dated as of the respective dates of delivery thereof and addressed to the Underwritersthereof, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the certain financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) At the Closing Time, each of Amendment No. 2 to the Intercreditor Agreement, the Class C(R) Trust Agreement, the Escrow Agreement, the Deposit Agreement and the Note Purchase Agreement shall have been executed and delivered by each party thereto; providedthe representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Date, to such effect.
(g) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) The Class C(R) Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) On the Closing Date, the Depositary shall have furnished to the Underwriters a certificate of the Depositary, signed by an officer of the Depositary, dated as of the applicable date, to the effect that the letter delivered representations and warranties of the Depositary contained in Section 1(b) hereof are true and correct with the same force and effect as though made on the such Closing Date shall use a “cut-off” date no more than three business days prior to such dateDate.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the The Company shall have furnished to the Representatives a letter substantially Underwriters and their counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the form purpose of Exhibit A hereto from each officer enabling such counsel to pass upon the matters referred to in subsection (b)(5) of this Section 4 and director in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company and each of theretofore to be performed, or the other persons listed on Schedule IV hereto addressed to the Representatives. If compliance with any of the conditions herein contained.
(k) The Company shall have obtained a Ratings Confirmation (as defined in the Intercreditor Agreement) in respect of the Class A Certificates and the Class B Certificates.
(l) The Company shall have issued a redemption notice to call the Class C Equipment Notes for redemption on the Class C Refinancing Date. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company Issuer and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b)) under the Securities Act; any material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company Issuer shall have requested and caused Xxxxx Lovells US Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Operating PartnershipIssuer, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholders Issuer shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLP, intellectual property counsel for the Issuer, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) Each Selling Stockholder shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for to the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives.
(d) [Reserved], and in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.;
(f) The Company Issuer shall have furnished to the Representatives a certificate of the CompanyIssuer, signed by any of the Chief Executive Officer Chairman of the Board and the Chief Financial Officer President or the principal financial or accounting officer of the Company, and by executive officers of the Operating PartnershipIssuer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment amendments or supplement supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership Issuer in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, and each of the Company Closing Date and the Operating Partnership Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipIssuer’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the financial condition, business or properties of the Issuer, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the certificate, signed by such Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ih) On the date of this Agreement, The Issuer shall have requested and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall caused Xxxxx Xxxxxxx XxXxxx P.C. to have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ accountant’s “comfort letters” to underwriters underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
Final Prospectus (j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereofincluding any supplement thereto).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any changechange or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change in the financial condition, business or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessIssuer, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(j) The Issuer shall have to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, a certificate of the Issuer’s chief financial officer or interim chief financial officer, as applicable, with respect to certain financial information contained in the Registration Statement, the Disclosure Package, and each free writing prospectus, if any.
(k) The Issuer shall have to have furnished to the Representatives, at the Closing Date, a letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, a certificate of the Issuer’s chief operating officer, as applicable, with respect to certain factual information related to the Issuer’s Intellectual Property contained in the Registration Statement, the Disclosure Package, and each free writing prospectus, if any.
(l) Subsequent to At the Execution TimeTime and on the Closing Date, (i) there the Representatives shall not have been any decrease in the rating of any of received a certificate from the Company’s Chief Financial Officer, addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representatives with respect to certain financial information contained or incorporated by reference in the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of Registration Statement, the Exchange Act), Disclosure Package and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesProspectus.
(m) Prior to the Closing Date, the Company, the Operating Partnership Issuer and the each Selling Stockholders Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Capital Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(o) At or prior to the Execution Time, the Company Issuer shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company Issuer, including the Selling Stockholders, and each certain other stockholders of the other persons listed on Schedule IV hereto Issuer as of the Effective Date, addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx Procter LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholders 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) The If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d424(b)(8) or 164(b) under the Act Act); the Registration Statement shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433remain effective; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Representative shall have received confirmation from Rxxxxxxx Bxxx Lxxxxxxx Gxxxxx Gxxxxxxx & Gxxxx P.C. that there are no claims to which its representation has been sought and that are outstanding in respect of the Company.
(c) The Company shall have requested and caused Xxxxx Lovells US LLPRxxxxxxx Brog Leinwand Gxxxxx Gxxxxxxx & Gxxxx P.C., securities counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their written opinion and letter substantially in the form attached hereto as Annex IRule 10b-5 negative assurance letter, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the RepresentativesRepresentative and its counsel.
(cd) The Selling Stockholders Representative shall have requested and caused received the Rule 10b-5 negative assurance letter of Lxxxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIUnderwriters’ counsel, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related such matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel Lxxxxxxxxx Xxxxxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representative shall have received the opinion of Law Offices of Dxxxxx X. Xxxx, PLLC, special intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Representative shall have received the opinion of Blooston, Mordkofsky, Dickens, Dxxxx & Pxxxxxxxxxx, LLP, general counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel.
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive Company or any other officers of the Operating PartnershipCompany acceptable to the Representative in its discretion, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, Package and the Prospectus and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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 or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to their knowledge, is contemplated by the knowledge of the Company and the Operating Partnership, threatened; andCommission or any state or regulatory body;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).Change; and
(giv) The the Company shall have furnished has complied with the terms and conditions of this Agreement on its part to be complied with up to the Representatives a certificate time of closing on the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIClosing Date.
(h) Each Selling Stockholder The Representative shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct received on and as of the Closing Date, with Date satisfactory evidence of the same effect as if made on such date; and
(ii) good standing of the Selling Stockholder has complied with all Company and its subsidiary in writing from the agreements and satisfied all the conditions on applicable Secretary of State of its part to be performed or satisfied at or prior to the Closing Datejurisdiction of organization.
(i) On The Company shall have requested and caused the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall Auditors to have furnished to the RepresentativesRepresentative, at the request of the CompanyClosing Date, a letter, dated as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the RepresentativesRepresentative, containing statements and information confirming that each is an independent registered public accounting firm within the meaning of the type customarily included Securities Act and the Exchange Act and covering, without limitation, in accountants’ “comfort letters” the case of the Former Auditor, the Company’s audited financial statements as of and for the year ended December 31, 2014, and in the case of the Current Auditor, the Company’s audited financial statements as of and the year ended December 31, 2015, and the various financial disclosures related thereto contained in the Registration Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectuses, if any.
(j) The Company shall have requested and caused the Current Auditor to underwriters with respect have furnished to the Representative, at the Closing Date, a letter, dated as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering, without limitation, IMT’s financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package Preliminary Prospectus, the Prospectus and the Prospectus; providedIssuer Free Writing Prospectuses, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)if any.
(k) The Company shall have requested and caused the Vislink Auditor to have furnished to the Representative, at the Closing Date, a letter, dated as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering, without limitation, Vislink’s financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectuses, if any.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (A) any change, change or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions decrease specified in the ordinary course letters referred to in paragraph (h) of businessthis Section 4 or (B) any Material Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (A) or (B) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lm) Subsequent FINRA shall have raised no objection to the Execution Time, (i) there shall not have been any decrease in the rating of any fairness and reasonableness of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), underwriting terms and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesarrangements.
(mn) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(no) The Company shall have filed a Listing of Additional Shares form with NASDAQ covering the Shares, the Warrant Shares and the Underwriter Warrant Shares.
(p) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in Representative Lock-Up Agreements executed by the form of Exhibit A hereto from each officer and director Lock-Up Parties.
(q) On the Closing Date, the Company shall have delivered to the Representative executed copies of the Company and each of the other persons listed on Schedule IV hereto addressed to the RepresentativesWarrant Agreement. If any of the conditions specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 4 shall be delivered at the office of Skadden, Arps, Slate, Lxxxxxxxxx Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000the Closing Location, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxxxxxx Xxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Inegative assurances letter, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibits A-1 and A-2 respectively.
(c) The Selling Stockholders Stockholder shall have requested and caused Xxxxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling StockholdersStockholder, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives, substantially to the effect set forth in Exhibit A-3.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed on behalf of the Company by the Chairman of the Board or the Chief Executive Officer or an Executive Vice President or Senior Vice President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus Final Prospectus, and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gf) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Chairman of the Selling StockholderBoard or the President or manager, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Underwriters shall have received, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, with as the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriterscase may be, in form and substance reasonably satisfactory to the Representatives, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, provided that the letter delivered on the Closing Date shall use a “cut-offoff date” not earlier than the date no more than three business days prior to such datehereof.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) At or prior Subsequent to the Execution Time, there shall not have been any decrease in the Company rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Representatives shall have furnished to received letters, dated, respectively, the Representatives a letter substantially date hereof and the Closing Date, executed by the Chief Financial Officer or Chief Accounting Officer of the Company, in the form of Exhibit A hereto from each officer B-1 and director B-2 respectively.
(l) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of the Company and each of the other persons listed on Schedule IV hereto addressed such actions shall have been provided to the Representatives.
(m) On or prior to or at the Closing Date, the Representatives shall have received from the Selling Stockholder a properly completed and executed IRS Form W-9 or an IRS Form W-8, as appropriate. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date Date, the Option Closing Date, if any, and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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) The If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d424(b)(8) or 164(b) under the Act Act); the Registration Statement shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433remain effective; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Representative shall have received confirmation from Rxxxxxxx Bxxx Lxxxxxxx Gxxxxx Gxxxxxxx & Gxxxx P.C. that there are no claims to which its representation has been sought and that are outstanding in respect of the Company.
(c) The Company shall have requested and caused Xxxxx Lovells US LLPRxxxxxxx Brog Leinwand Gxxxxx Gxxxxxxx & Gxxxx P.C., securities counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their written opinion and letter substantially in the form attached hereto as Annex IRule 10b-5 negative assurance letter, dated the Closing Date or the Option Closing Date, as applicable, in form and addressed substance reasonably satisfactory to the RepresentativesRepresentative and its counsel.
(cd) The Selling Stockholders Representative shall have requested and caused received the Rule 10b-5 negative assurance letter of Lxxxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIUnderwriters’ counsel, dated the Closing Date or the Option Closing Date, as applicable, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related such matters as the Representatives Underwriters may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel Lxxxxxxxxx Xxxxxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representative shall have received the opinion of Law Offices of Dxxxxx X. Xxxx, PLLC, special intellectual property counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Representative shall have received the opinion of Blooston, Mordkofsky, Dickens, Dxxxx & Pxxxxxxxxxx, LLP, general counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive Company or any other officers of the Operating PartnershipCompany acceptable to the Representative in its discretion, dated the Closing Date or the Option Closing Date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, Package and the Prospectus and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date or the Option Closing Date, as applicable, with the same effect as if made on such datethe Closing Date or the Option Closing Date, as applicable, date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as applicable;
(ii) no stop order or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to their knowledge, is contemplated by the knowledge of the Company and the Operating Partnership, threatened; andCommission or any state or regulatory body;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).Change; and
(giv) The the Company shall have furnished has complied with the terms and conditions of this Agreement on its part to be complied with up to the Representatives a certificate time of closing on the CompanyClosing Date or the Option Closing Date, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIapplicable,.
(h) Each Selling Stockholder The Representative shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct received on and as of the Closing Date or the Option Closing Date, with as applicable, satisfactory evidence of the same effect as if made on such date; and
(ii) good standing of the Selling Stockholder has complied with all Company and its subsidiary in writing from the agreements and satisfied all the conditions on applicable Secretary of State of its part to be performed or satisfied at or prior to the Closing Datejurisdiction of organization.
(i) On The Company shall have requested and caused the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall Auditors to have furnished to the RepresentativesRepresentative, at the request Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof Closing Date and addressed to the Underwritersany settlement date, in form and substance satisfactory to the RepresentativesRepresentative, containing statements and information confirming that each is an independent registered public accounting firm within the meaning of the type customarily included Securities Act and the Exchange Act and covering, without limitation, in accountants’ “comfort letters” the case of the Former Auditor, the Company’s audited financial statements as of and for the year ended December 31, 2014, and in the case of the Current Auditor, the Company’s audited financial statements as of and the year ended December 31, 2015, and the various financial disclosures related thereto contained in the Registration Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectuses, if any.
(j) The Company shall have requested and caused the Current Auditor to underwriters with respect have furnished to the Representative, at the Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering, without limitation, IMT’s financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package Preliminary Prospectus, the Prospectus and the Prospectus; providedIssuer Free Writing Prospectuses, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateif any.
(jk) In order The Company shall have requested and caused the Vislink Auditor to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect have furnished to the transactions herein contemplatedRepresentative, such Selling Stockholder will deliver to you prior to or at the Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as hereinafter defined) a properly completed of the Execution Time and executed United States Treasury Department Form W-9 (or other applicable as of the Closing Date and any settlement date, in form or statement specified by Treasury Department regulations and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering, without limitation, Vislink’s financial statements and certain financial information contained in lieu thereof)the Registration Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectuses, if any.
(kl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (A) any change, change or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions decrease specified in the ordinary course letters referred to in paragraph (h) of businessthis Section 4 or (B) any Material Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (A) or (B) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lm) Subsequent FINRA shall have raised no objection to the Execution Time, (i) there shall not have been any decrease in the rating of any fairness and reasonableness of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), underwriting terms and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesarrangements.
(mn) Prior to the Closing Date or the Option Closing Date, the Companyas applicable, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(no) The Company shall have filed a Listing of Additional Shares form with NASDAQ governing the Shares, the Conversion Shares, and the Warrant Shares to be listed thereunder.
(p) NASDAQ shall have approved the listing of the Warrants, subject to official notice of issuance.
(q) The Certificate of Designation shall have been filed with the Secretary of State of Delaware and shall be effective; a filed copy of the Certificate of Designation shall have been provided to the Underwriters and its counsel.
(r) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in Representative Lock-Up Agreements executed by the form of Exhibit A hereto from each officer and director Lock-Up Parties.
(s) On the Closing Date, the Company shall have delivered to the Representative executed copies of the Company and each of the other persons listed on Schedule IV hereto addressed to the RepresentativesWarrant Agreement. If any of the conditions specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 4 shall be delivered at the office of Skadden, Arps, Slate, Lxxxxxxxxx Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000the Closing Location, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLP[Name], counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., as set forth in Exhibit B.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP[Name], Irish counsel for the Selling StockholdersCompany, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives., as set forth in Exhibit C.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP[Name], counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and President or the Chief Financial Officer principal financial officer or secretary of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(gf) The Company shall have furnished requested and caused [ ] to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of at the Selling Stockholder, dated Execution Time and at the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties letters, dated respectively as of the Selling Stockholder in this Agreement are true and correct on Execution Time and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the financial information of the type customarily included Company for the [relevant periods], in accountants’ “comfort letters” to underwriters accordance with respect to the financial statements and certain financial information included or incorporated by reference Statement on Auditing Standards No. 100, as set forth in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.Exhibit D.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereof after the Execution Time) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lh) [Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)) or any notice given of any intended or potential decrease in Section 3(a)(62) any such rating or of a possible change in any such rating that does not indicate the direction of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitieschange.]
(mi) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) At or prior to the Execution Time, the Company [The [Ordinary Shares] [Preferred Shares] shall have furnished to the Representatives a letter substantially in the form been listed and admitted and authorized for trading on NASDAQ, and satisfactory evidence of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed such actions shall have been provided to the Representatives. .] If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP[Name], counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000[Address], on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Class B Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, date hereof and as of the Closing Date pursuant to Section 4 hereofTime, to the accuracy of the statements of the Company and the Selling Stockholders Company's officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, the Underwriters shall have requested received:
(1) An opinion and caused a negative assurance letter, each dated as of the Closing Date, of Debevoise & Xxxxxxxx LLP, as counsel for the Company, each in form reasonably satisfactory to the Representative.
(2) An opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxx, General Counsel to the Company, in form and substance reasonably satisfactory to the Representative.
(3) An opinion, dated as of the Closing Date, from Xxxxxx Xxxxx Lovells US LLP, counsel for the Company Wilmington, individually, and the Operating Partnershipas Subordination Agent, to have furnished Trustee and Loan Trustee, in form and substance reasonably satisfactory to the Representatives their opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the RepresentativesRepresentative.
(c4) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIAn opinion, dated as of the Closing Date, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and addressed substance reasonably satisfactory to the RepresentativesRepresentative.
(d5) [Reserved]An opinion, dated as of the Closing Date, from Christian Le Hir, General Counsel to the Liquidity Provider, in form and substance reasonably satisfactory to the Representative.
(e6) The Representatives shall have received An opinion and negative assurance letter, dated as of the Closing Date, from Skadden, Arps, Slate, Xxxxxxx & Xxxx Milbank LLP, counsel for the Underwriters, such opinion or opinions, dated each in form and substance reasonably satisfactory to the Representative.
(c) At the Closing Date, there shall not have been, since the respective dates as of which information is given in the General Disclosure Package and addressed to the RepresentativesFinal Prospectus, with respect to any material adverse change in the issuance and sale condition, financial or otherwise, of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and its subsidiaries considered as one enterprise, or in the Operating Partnership earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives received a certificate of the Company, signed by the Chief Executive Officer and the Officer, Chief Financial Officer or any Vice President of the Company, and by executive officers dated as of the Operating Partnership, dated the such Closing DateTime, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership contained in this Agreement Section 1(a) hereof are true and correct on and as of the Closing Date, with the same force and effect as if though made on at such date, Closing Time and each (iii) the Company has complied in all material respects with all of the Company and the Operating Partnership has complied with all the agreements applicable to it contemplated herein and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or before the Closing Date.
(d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date;Time, neither nationally recognized statistical rating organization that has been requested by the Company to rate the Class B Certificates shall have downgraded the rating accorded any of the Company's securities (except for any pass through certificates) or announced that any probable downgrading of such rating is about to occur in the near future.
(iie) no stop order suspending Promptly after the effectiveness execution of this Agreement and also at the Closing Time, the Underwriters shall have received from Ernst & Young LLP a letter or letters, dated as of the Registration Statement or any notice objecting to its use has been issued respective dates of delivery thereof, in form and no proceedings for that purpose have been instituted or, substance reasonably satisfactory to the knowledge Representative, containing statements and information of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent type ordinarily included in accountants' "comfort letters" to underwriters with respect to certain financial statements included and certain financial information contained or incorporated by reference in the General Disclosure Package and the Prospectus Final Prospectus.
(exclusive f) At the Closing Time, each of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration StatementIntercreditor Agreement, the Disclosure Package Liquidity Facility and the Prospectus (exclusive Trust Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and the Underwriters shall have received a certificate of the Chief Executive Officer, Chief Financial Officer or any supplement thereto)Vice President of the Company, dated as of the Closing Date, to such effect.
(g) Promptly after the execution of this Agreement and also at the Closing Time, each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the respective date of delivery thereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(h) Each class of Class B Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item 2 in Schedule A hereto from the nationally recognized statistical rating organizations named therein.
(i) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, Underwriters and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriterstheir counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representatives, containing statements purpose of enabling such counsel to pass upon the matters referred to in subsection (b)(6) of this Section 4 and information in order to evidence the accuracy and completeness of any of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included representations, warranties or incorporated by reference in the Registration Statementstatements, the Disclosure Package and performance of any covenant by the Prospectus; providedCompany theretofore to be performed, that or the letter delivered on compliance with any of the Closing Date shall use a “cut-off” date no more than three business days prior to such dateconditions herein contained.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Closing Time, the Company each Indenture and each Participation Agreement shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer been duly executed and director of delivered by the Company and each other respective party thereto, and copies thereof shall have been furnished to the Underwriters and their counsel, and the representations and warranties of the other persons listed on Schedule IV hereto addressed Company contained in such agreements shall be accurate as of the Closing Time.
(k) At or prior to the RepresentativesClosing Time, the Class A Certificates shall have been duly issued and represent enforceable obligations of the Class A Trust. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects satisfactory to the Underwriters and their counsel. If any of the conditions condition specified in this Section 7 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, or if other than by reason of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not default by any Underwriter, such failure to fulfill a condition may be reasonably satisfactory in form and substance to the Representatives and counsel for waived by the Underwriters, or this Agreement and all obligations of may be terminated by the Underwriters hereunder may be canceled at, or by notice to the Company at any time at or prior to, to the Closing Date by the Representatives. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in Sections 5, 6 and Selling Stockholders 8 hereof, which provisions shall remain in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Securityholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Securityholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Securityholders of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives.
(c) The Selling Stockholders Securityholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Selling StockholdersSecurityholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx White & Xxxx Case LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Securityholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show thereto used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) Each Selling Securityholder shall have furnished to the Representatives a certificate, signed by an Attorney-in-Fact designated under the Power of Attorney, dated the Closing Date, to the effect that this Agreement and that the representations and warranties of such Selling Securityholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have furnished requested and caused BDO USA, LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request Execution Time and at the Closing Date, letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Securityholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Securityholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx White & Xxxx Case LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank or J.P. Morgan Chase & Co. which, in the reasonable judgment of thx Xxxxxxxxxaxxxx, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank or J.P. Morgan Chase & Co. on any exchange or in the over-the-counxxx xxxxxx by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested Representative, of Simpson Thacher & Bartlett, special counsel to the Bank, Richarxx, Xxxxxx & Xxngex, X.X., special counsel to the Trust, and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLPxxxx xxxxx xounsel otherwise reasonably acceptable to the Representative, counsel with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Simpson Thacher & Bartlett, special counsel to the Bank, dated the Xxxxxxx Xxxe axx xxxxxnably satisfactory in form and substance to the Representative, with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Richards, Layton & Finger, P.A., special counsel to the Bank, wxxx xxxxxxx xx xhe perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Sidley Austin Brown & Xxxx Wood LLP, counsel for to the Underwriters, such opinion or opinionsopinxxx xx xxxxxons, dated daxxx the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesNotes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company Representative shall have furnished received an opinion of Simpson Thacher & Bartlett, special tax counsel to the Representatives a certificate of the CompanyBank, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably daxxx xxx Xxxxxxx Xxxe xxx xeasonably satisfactory in form and substance to the Representatives effect (a) that under current law the Notes will be characterized as debt, and counsel the Trust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the Underwritersqualifications set forth therein, this Agreement the statements made in the Prospectus Supplement under the caption "Material Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal tax law and all obligations regulations or legal conclusions with respect thereto, constitute accurate summaries of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing DateUnited States federal income tax matters described therein.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Auto Owner Trust 2001 A)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Applicable Time and the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US (i) Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their its opinion and letter substantially in negative assurance letter, each dated the form attached hereto as Annex IClosing Date and addressed to the Representatives; and (ii) each of Xxxxx & Xxxxxx L.L.P., special counsel to the Company, and Xxxxx Lovells US LLP, special regulatory counsel to the Company, to have furnished to the Representatives its opinion.
(c) The Selling Stockholders, excluding Indigo Partners, shall have requested and caused Xxxxxx LLP, counsel for the Selling Stockholders, excluding Indigo Partners, to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives, .
(d) Indigo Partners shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for Indigo Partners, to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed executed on its behalf by the Chief Executive Officer principal executive officer and the Chief Financial Officer principal financial officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus, any Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects, or, if already qualified by materiality, are true and correct, on and as of the Closing Date, Date with the same effect as if made on such datethe Closing Date, and each of the Company and the Operating Partnership has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change or any development involving a prospective material adverse change in or affecting the earnings, business, prospects, management, properties, assets, operations or condition (financial or otherwise) of the Company and its subsidiaries taken as a whole, whether or not occurring in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, executed on its behalf by an Attorney-in-Fact of the such Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects, or, if already qualified by materiality, are true and correct, on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Closing Date and that the Selling Stockholder has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ih) On The Representatives shall have received, on each of the date of this Agreement, hereof and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, letter dated the respective dates of delivery thereof and addressed to date hereof or the UnderwritersClosing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, from Ernst & Young LLP, an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, provided that the letter delivered on the Closing Date shall use a “cut-offoff date” date no more not earlier than three business days prior to such dateClosing Date.
(i) The Representatives shall have received, on each of the date hereof and the Closing Date, a certificate of the Company, executed on its behalf by the principal financial officer of the Company, substantially in the form agreed with the Representatives.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, prospects or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(lk) Subsequent The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been provided to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitiesRepresentatives.
(ml) Prior to On or before the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Timedate hereof, the Company shall have furnished to the Representatives a letter lock-up agreements substantially in the form of Exhibit A hereto from each officer and director of the Company and each all Company stockholders, including the Selling Stockholders, and other equity holders of the Company including holders of stock options and other persons listed equity awards, and such lock-up letters shall be in full force and effect on Schedule IV hereto addressed the Closing Date.
(m) The Company will deliver to each Underwriter, on or before the Closing Date, (i) a certificate with respect to the Company’s status as a “United States real property holding corporation,” dated not more than thirty (30) days prior to the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) proof of delivery to the Internal Revenue Service of the required notice, as described in Treasury Regulations Section 1.897-2(h)(2).
(n) The Company and each Selling Stockholder will deliver to the Representatives prior to or at the Closing Date a properly completed and executed Internal Revenue Service Form W-9 or Form W-8, as appropriate, together with all required attachments to such form.
(o) The Company and each Selling Stockholder will deliver to the Representatives, on or before the date hereof, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company and each Selling Stockholder undertakes to provide such additional supporting documentation as the Representatives may reasonably request in connection with the verification of the foregoing Certification.
(p) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable settlement date of the following:
(i) (A) an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Company; (B) an opinion of Xxxxx & Xxxxxx L.L.P., special counsel to the Company; and (C) an opinion of Xxxxx Lovells US LLP, special regulatory counsel to the Company, in each case, dated the settlement date, relating to the Option Securities to be purchased on such settlement date and otherwise to the same effect as the opinions and negative assurance letter required by Section 6(b) hereof;
(ii) an opinion of Xxxxxx & Xxxxxxx LLP, counsel for Indigo Partners, dated the settlement date, relating to the Option Securities to be purchased on such settlement date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iii) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the settlement date, relating to the Option Securities to be purchased on such settlement date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(iv) a certificate of the Company, dated the settlement date and executed on behalf of the Company by the principal executive officer and the principal financial officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(f) hereof remains true and correct as of such settlement date;
(v) a certificate, dated the settlement date, from Indigo Partners, confirming that the certificate delivered on the Closing Date pursuant to Section 6(g) hereof remains true and correct as of such settlement date;
(vi) a letter dated the settlement date, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, an independent registered public accounting firm, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(h) hereof; provided that the letter delivered on the settlement date shall use a “cut-off date” not earlier than three business days prior to such settlement date;
(vii) a certificate of the Company, dated the settlement date and executed on behalf of the Company by the principal financial officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(i) hereof remains true and correct as of such settlement date; and
(viii) the Company will deliver to each Underwriter, on or before the settlement date a certificate in form and substance as described in Section 6(m) dated not more than thirty (30) days prior to the settlement date together with proof of delivery to the Internal Revenue Service. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or the applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, place that you designate on the Closing DateDate or the applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Frontier Group Holdings, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofand any Option Closing Date, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and the applicable Option Closing Date(s), if any, and addressed to the Representatives, in the form previously negotiated between Xxxxxx LLP and counsel to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from SkaddenXxxxxx, Arps, Slate, Xxxxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and the applicable Option Closing Date(s), if any, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer of the Company and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing DateDate and the applicable Option Closing Date(s), if any, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership contained in Section 1 of this Agreement are true and correct on and as of the Closing DateDate or the applicable Option Closing Date(s), if any, with the same effect as if made on such datethe Closing Date or the applicable Option Closing Date(s), if any, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the Closing DateDate or the applicable Option Closing Date(s), if any;
(ii) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date as of the most recent financial statements included or incorporated by reference which information is given in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has not been no any material adverse change or any development involving a prospective change, which has had or would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ge) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, requested and addressed to the Representatives to the effect that:
caused (i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date and the applicable Option Closing Date(s), if any, letters, dated respectively as of the CompanyExecution Time and as of the Closing Date and the applicable Option Closing Date(s), a letterif any, in form and substance satisfactory to the Representatives and (ii) McGladrey LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date and the applicable Option Closing Date(s), if any, letters, dated respectively as of the respective dates Execution Time and as of delivery thereof the Closing Date and addressed to the Underwritersapplicable Option Closing Date(s), if any, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) ), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mg) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nh) At The Securities shall have been approved for listing upon notice of issuances on Nasdaq, and satisfactory evidence of the same shall have been provided to the Representatives.
(i) FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or prior the Underwriters’ participation in same.
(j) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company and each of the other persons person listed on Schedule IV hereto addressed hereto. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the Representativestransfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of SkaddenXxxxxx, Arps, Slate, Xxxxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, Initial Sale Time and as of the Closing Date pursuant (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to Section 4 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereofof this Section 5, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxx LLP, U.S. counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., to the effect set forth in Annex I hereto;
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxx, Xxxxxxx & Xxxxxxxx Xxxxxxx LLP, Canadian counsel for the Selling StockholdersCompany, to shall have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives., with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Xxxxx XXx and Xxxxx XXx;
(d) [Reserved].
(e) The Representatives shall have received from SkaddenXxxx, ArpsXxxxx, SlateXxxxxxx, Xxxxxxx & Xxxx Xxxxxxxx LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(e) The Representatives shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Xxxxx XXX;
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Vice-President, Finance and Treasurer and the Executive Vice-President, Corporate Development and Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageCanadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:Agreement;
(iii) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership 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;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the knowledge of Company’s knowledge, instituted or threatened by the Company and Reviewing Authority or the Operating Partnership, threatened; andCommission;
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any supplement thereto)Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the material adverse effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Disclosure Package; and
(v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Initial Sale Time and the Closing Date, the Representatives shall have received from KPMG LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other 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 in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus. At the Initial Sale Time and the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Columbia Financial Information and certain financial information of Columbia contained in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus;
(h) Subsequent to the Initial Sale Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Initial Sale Time, the Canadian Final Prospectus as amended or supplemented prior to the Initial Sale Time, the Disclosure Package or any Issuer Free Writing Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 5 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 Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any amendment or supplement thereto) Disclosure Package the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).Issuer Free Writing Prospectus;
(li) Subsequent to the Execution Initial Sale Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and ) 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;
(iij) no such organization shall have publicly announced that it If the Registration Statement or an offering of Securities has under surveillance or been filed with the FINRA for review, the FINRA shall not have raised any objection with possible negative implications, its ratings of any respect to the fairness and reasonableness of the Company’s debt securities.underwriting terms and arrangements; and
(mk) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 5 shall be delivered at the office of Skaddenthe Company, ArpsAttention: Corporate Secretary, Slate000 — 0xx Xxxxxx X.X., Xxxxxxx & Xxxx LLPXxxxxxx, counsel for the UnderwritersXxxxxxx, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, T2P 5H1 on the Closing DateDate or such other place as the Company and the Representatives shall so agree.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and the Selling Stockholders Guarantors contained herein as of the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company Issuer and the Selling Stockholders Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantors of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(ii) hereof, and any other material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Issuer shall have requested and caused Xxxxx Lovells US Xxxx, Gotshal & Xxxxxx LLP, U.S. counsel and Xxxx, Gotshal & Xxxxxx (London) LLP, U.K. counsel for the Company and the Operating Partnershipcertain Guarantors, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iletter, dated the Closing Date and addressed to the Representatives, in the forms set forth on Annexes A-I and A-II hereto with respect to U.S. counsel and in a form reasonably satisfactory to the Underwriters, with respect to the opinion of U.K. counsel.
(c) The Selling Stockholders Issuer shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Irish counsel for the Selling StockholdersWTW and Xxxxxx Xxxxxx Xxxxxx Sub Holdings Unlimited Company, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex IIopinion, dated the Closing Date, Date and addressed to the Representatives, in the form set forth on Annex B hereto.
(d) The Issuer shall have requested and caused Xxxxx & XxXxxxxx Amsterdam N.V., Dutch counsel for Xxxxxx Netherlands Holdings B.V., to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form set forth on Annex C hereto.
(e) [Reserved].
(ef) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuer and the Operating Partnership Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fg) The Company Issuer shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Xxxxxx Xxxxxxx and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipXxxxxxx Xxxxxx, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplements to the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i1) the representations and warranties of the Company Issuer and the Operating Partnership Guarantors in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, and each of the Company Closing Date and the Operating Partnership has Issuer and the Guarantors have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii2) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipIssuer, threatened; and
(iii3) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no event or development that has had, or that would reasonably be expected to have, a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder The Issuer shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, requested and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and caused Deloitte & Touche LLP shall to have furnished to the Representatives, (i) at the request Execution Time, a letter dated as of the Company, a letter, dated the respective dates of delivery thereof and addressed to the UnderwritersExecution Time, in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to WTW within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included contained in or incorporated by reference in into the Registration StatementPreliminary Prospectus and Disclosure Package, the Disclosure Package and the Prospectus; provided, that the which letter delivered on the Closing Date shall use a “cut-offoff date” not earlier than three business days prior to the Execution Time, and (ii) at the Closing Date, a “bring down” comfort letter dated as of the Closing Date, in form and substance satisfactory to the Representatives, that reaffirms the statements made in the letter pursuant to subclause (i) of this Section 6(h), except that the specified cut-off date no referred to shall be a date not more than three business days prior to such datethe Closing Date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(ki) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change, change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change or any development involving that can be expected to have a prospective change, in or affecting material adverse effect on the condition (financial or otherwise), business prospects or results of operations, business, properties or prospects operations of the Company WTW and its subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Issuer and the Selling Stockholders Guarantors shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(nk) At or prior Subsequent to the Execution Time, there shall not have been any decrease in the Company rating of debt securities of WTW or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined in section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) At the Execution Time and on the Closing Date, the Representatives shall have furnished to received a written certificate executed by the Representatives a letter substantially Chief Financial Officer of WTW, in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed substance reasonably satisfactory to the Representatives, with respect to certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Xxx Xxxx 00000 on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Issuers contained herein as of the Execution Time, Applicable Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company and or the Selling Stockholders Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company and Guarantors pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxx & Xxxxx Lovells US LLP, counsel for the Company and the Operating PartnershipGuarantors, to have furnished to the Representatives their its opinion and letter substantially negative assurance letter, each dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the form attached hereto as Annex IRepresentatives.
(c) The Company shall have requested and caused GableGotwals, counsel for the Company and the Guarantors, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested , in form and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed substance reasonably satisfactory to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company and the Guarantors shall have each furnished to the Representatives a certificate of the CompanyCompany and the Guarantor, as the case may be, signed by the their respective Chief Executive Officer Officer, President or a Vice President and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipOfficer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure PackageFinal Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership Issuers in Section 1 of this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, and each of the Company Closing Date and the Operating Partnership has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of Company’s or the Company and the Operating PartnershipGuarantors’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(gf) The Company shall have furnished to the Representatives a certificate requested and caused each of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations PricewaterhouseCoopers LLP and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Applicable Time and at the Closing Date, “comfort letters” (which may refer to letters previously delivered to the Representatives), dated respectively as of the Company, a letter, dated Applicable Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements PricewaterhouseCoopers LLP and information of Ernst & Young LLP, as the type customarily included in accountants’ “comfort letters” to underwriters case may be, with respect to the certain financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kg) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise)business, properties, earnings, results of operations, business, properties operations or prospects financial condition of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) ), the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Final Prospectus.
(lh) Subsequent to the Execution Applicable Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s Guarantors’ debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(mi) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone telephone, email or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date, or as otherwise agreed by the Company and the Representatives.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Shareholders contained herein in this Agreement as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder under this Agreement and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b)) under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433433 under the Act; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any notice objecting to its their use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx LLP, United States counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their (i) its opinion and letter substantially in the form attached hereto as Annex I, dated the Closing Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, substantially in the form of Exhibit B hereto, and (ii) its tax opinion dated the Closing Date and and addressed to the Representatives on behalf of the Underwriters, in form and substance satisfactory to the Underwriters.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Xxxxxxx Xxxx & Xxxxxxxx LLPXxxxxxx, Cayman Islands counsel for the Selling StockholdersCompany, to have furnished to the Representatives their its opinion dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form attached hereto as Annex IIof Exhibit C hereto.
(d) The Company shall have requested and caused Xxx Xx Law Offices, PRC counsel for the Company, to have furnished to the Company its opinion dated the Closing Date, substantially in the form of Exhibit D hereto, together with a consent letter permitting the Company to provide its opinion to the Underwriters; such consent letter shall be in form and substance satisfactory to the Underwriters.
(e) The Depositary shall have requested and caused Xxxxxxx, Xxxxxxx & Associates, LLP, counsel for the Depositary, to have furnished to the Representatives its opinion dated the Closing Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, substantially in the form of Exhibit E hereto.
(df) [Reserved].The Selling Shareholders shall have requested and caused Xxxxxx & Xxxxxxx LLP, U.S. counsel for the Selling Shareholders, to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form of Exhibit F.
(eg) Each of the Selling Shareholders shall have requested and caused its local counsel to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form of Exhibit G.
(h) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Shareholder shall have furnished to such counsel Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP such documents as they it may reasonably request for the purpose of enabling them it to pass upon such matters.
(fi) The Representatives shall have received from King and Wood, PRC counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, with respect to certain issues under PRC law relating to the transactions contemplated hereunder and other related matters as the Representatives may reasonably require, and the Company and each Selling Shareholder shall have furnished to King and Wood such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(j) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer chairman of the board or the chief executive officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the ADR Registration Statement or the Registration Statement or of any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) a true and complete copy of the legal opinion of Xxx Xx Law Offices, PRC counsel for the Company, dated the Closing Date, is attached as an exhibit to such certificate and such opinion has not been amended or withdrawn.
(gk) The Company Each Selling Shareholder shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chief Financial Officer a duly authorized representative of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each such Selling Stockholder shall have furnished to the Representatives a certificate of the Selling StockholderShareholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(il) On The Company shall have requested and caused Deloitte Touche & Tohmatsu CPA Ltd. to have furnished to the date of this Agreement, Representatives at the Execution Time and on at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representativesletters, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of to the type customarily included effect set forth in accountants’ “comfort letters” to underwriters Exhibit H, with respect to the financial statements and certain financial information included or incorporated by reference contained in the Preliminary Prospectus dated July [—], 2009, the Registration Statement, the Disclosure Package and the Final Prospectus; provided, provided that the letter delivered on the Closing Date shall use a “cut-offoff date” not earlier than the date no more than three business days prior to such datehereof.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(km) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (l) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ln) Subsequent to the Execution Time, (i) there The Deposit Agreement shall not have been any decrease be in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), full force and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitieseffect.
(mo) The Depositary shall have furnished or caused to be furnished to the Representatives certificates satisfactory to the Representatives evidencing the deposit with the Custodian of the Underlying Shares in respect of which ADSs to be purchased by the Underwriters on such Closing Date are to be issued, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(p) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders Shareholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nq) At or prior The ADSs shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(r) The FINRA shall have confirmed that it has not raised any objection with respect to the Execution Timefairness or reasonableness of the underwriting, or other arrangements of the Company transactions, contemplated hereby.
(s) There shall not be any adverse legislative or regulatory developments related to the M&A Rules and Related Clarifications which in the reasonable judgment of the Representatives would make it inadvisable to proceed with the public offering or the delivery of the Shares and the ADSs on the terms and in the manner contemplated in this Agreement.
(t) The Lock-up Agreements shall be in full force and effect on the Closing Date.
(u) The Controlling Shareholder shall have furnished to the Representatives a letter substantially certificate, signed by a duly authorized representative of such Controlling Shareholder, dated the Closing Date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of such Controlling Shareholder in the form of Exhibit A hereto from each officer this Agreement are true and director correct in all material respects on and as of the Company and each of the other persons listed on Schedule IV hereto addressed Closing Date to the Representativessame effect as if made on the 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 reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder under this Agreement may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office offices of Skadden, Arps, Slate, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx XxxxxxBank of China Tower, Xxx Xxxx39/F, XX 00000One Garden Road, Central, Hong Kong, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (VanceInfo Technologies Inc.)
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of ___________________ verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, JPMorgan Chase or J.P. Morgan Chase & Co. which, in the reasonable judgment of thx Xxxxxxxxxaxxxx, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, JPMorgan Chase or J.P. Morgan Chase & Co. on any exchange or in the over-the-counxxx xxxxxx bx xxxh exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx Representative, of Simpson Thacher & Xxxxxxxx LLPBartlett, special counsel to the Bank, Richarxx, Xxxxxx & Xxngex, X.X., special counsel to the Trust, xxx xxxx xxxxx xounsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Simpson Thacher & Bartlett, special counsel to the Bank, dated xxx Xxxxxxx Xxxe axx xxxxxnably satisfactory in form and substance to the Representative, with respect to certain matters relating to the treatment of the transfer of the Receivables from the Bank to the Trust by the Federal Deposit Insurance Corporation and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Richards, Layton & Finger, P.A., special counsel to the Bank, wxxx xxxxxxx xx xhe perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Sidley Austin Brown & Xxxx Wood LLP, counsel for to the Underwriters, such opinion or opinionsopinxxx xx xxxxxons, dated xxted the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesNotes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Simpson Thacher & Bartlett, special tax counsel to the Representatives a certificate of the CompanyBank, signed by the Chief Executive Officer daxxx xxx Xxxxxxx Daxx xxx xeasonably satisfactory in form and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect (a) that under current law the signers of such certificate have carefully examined Notes will be characterized as debt, and the Registration StatementTrust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the qualifications set forth therein, the Disclosure Package, statements made in the Prospectus Supplement under the caption "Material Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal tax law and any amendment regulations or supplement legal conclusions with respect thereto, as well as each electronic road show used in connection with the offering constitute accurate summaries of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex IIIUnited States federal income tax matters described therein.
(h) Each Selling Stockholder The Representative shall have furnished received an opinion of Richards, Layton & Finger, P.A., special counsel to the Representatives a certificate of Owner Txxxxxx, xxx xxxx other counsel reasonably satisfactory to the Selling StockholderRepresentative and its counsel, dated the Closing Date, Date and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel Representative, with respect to such matters as are customary for the Underwriterstype of transaction contemplated by this Agreement.
(i) The Class A-1 Notes shall have been rated "___" by Standard & Poor's, this Agreement "___" by Moody's and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date "___" by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writingFitch. The documents required to be delivered Class A-2 Notes, Class A-3 Notex xxx Xlass A-4 Notes shall have been rated "___" by this Section 7 Standard & Poor's, "___" by Moody's and "___" by Fitch. The Certificates shall be delivered at the office of Skaddenhave been raxxx "___" by Standard & Poor's, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date"___" by Moody's and "___" by Fitch.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and the Selling Stockholders Guarantor[s] contained herein as of at the Execution Time, Time and the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of the Company Issuer and the Selling Stockholders Guarantor[s] made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantor[s] of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(c) hereto and any other material required to be filed by the Company Issuer and the Guarantor[s] pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Issuer and the Guarantor[s] shall have requested and caused Xxxxx Lovells US & Xxxxxxx LLP, U.S. counsel for the Company Issuer and the Operating PartnershipGuarantor[s], to have furnished furnish to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iits opinion, dated the Closing Date and addressed to the RepresentativesUnderwriters, to the effect set forth in Annex A hereto.
(c) The Selling Stockholders Issuer and the Guarantor[s] shall have requested and caused Xxxxxxx Xxxxxxx Mourant du Feu & Xxxxxxxx LLPJeune, Jersey counsel for the Selling StockholdersIssuer and the Guarantor[s], to have furnished furnish to the Representatives their opinion its opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the RepresentativesB hereto.
(d) [ReservedThe Issuer and the Guarantor[s] shall have requested and caused Xxxxx & Overy LLP, English counsel for the Issuer and the Guarantor[s], to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached as Annex C hereto.
(e) The Issuer and the Guarantor[s] shall have requested and caused A&L Goodbody, Irish counsel for the Issuer and the Guarantor[s], to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached as Annex D hereto.
(f) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company Issuer and the Operating Partnership Guarantor[s] shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representatives shall have received from [ ], English counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to such matters as the Representatives may reasonably require, and the Issuer and the Guarantor[s] shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) At the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Disclosure Package or the Final Prospectus, any material adverse change, and no development reasonably likely to cause a prospective material adverse change, in the financial condition or in the earnings or business of the Issuer, the Guarantor[s] and their subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate executed by each of the Company, signed by the Chief Executive Officer chief financial officer or principal officer and the Chief Financial Officer secretary or other director of the Company, Issuer and by executive officers of the Operating PartnershipGuarantor[s], dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no such material adverse change, (ii) the representations and warranties of the Company and the Operating Partnership in this Agreement Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Date, with and (iii) the same effect as if made on such date, and each of the Company Issuer and the Operating Partnership has Guarantor[s] have each complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part their respective parts to be performed or satisfied at or prior to the Closing Date.
(i) On At the date of this AgreementExecution Time, the Issuer and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP Guarantor[s] shall have furnished requested and caused Deloitte LLP to furnish to the RepresentativesRepresentatives letters, at the request dated as of the Company, a letter, dated the respective dates of delivery thereof and addressed to the UnderwritersExecution Time, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided.
(j) At the Closing Date, the Issuer and the Guarantor[s] shall have requested and caused Deloitte LLP to furnish to the Representatives letters, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (i) of this Section, except that the letter delivered on the Closing Date specified date referred to shall use be a “cut-off” date no not more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)Date.
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) The Securities shall be eligible for clearance and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)settlement through The Depository Trust Company.
(l) Subsequent [The [EXCHANGE] shall have agreed to list the Notes, subject only to notice of issuance.]
(m) The Securities shall have been rated [ ] by Xxxxx’x Investors Services Inc. and [ ] by Standard & Poor’s Ratings Services and subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the CompanyIssuer’s or the Operating Partnership’s Guarantor[‘s][s’] debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in Section 3(a)(62) any such rating or of a possible change in any such rating that does not indicate the direction of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securitieschange.
(mn) Prior to the Closing Date, the Company, the Operating Partnership Issuer and the Selling Stockholders Guarantor[s] shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled satisfied when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders Issuer or the Guarantor[s] in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall will be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders CIHC contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders CIHC made in any certificates pursuant to the provisions hereof, to the performance by the Company and CIHC of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US each of Xxxxxx & Xxxxxx LLP, counsel for the Company Company, and Blake, Xxxxxxx & Xxxxxxx LLP, counsel for the Operating PartnershipCompany, to have furnished and the Company’s general counsel shall furnish to the Representatives their opinion and letter substantially in the form attached hereto as Annex IRepresentative opinions, each dated the Closing Date and addressed to the RepresentativesRepresentative, substantially in the forms of Exhibit A, Exhibit B and Exhibit C hereto, respectively.
(c) The Selling Stockholders CIHC shall have requested and caused Xxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxxx Xxxx LLP and Xxxxxx & Xxxxxx LLP, counsel for the Selling Stockholders, to have furnished and the CIHC’s Secretary shall furnish to the Representatives their opinion substantially in the form attached hereto as Annex IIRepresentative opinions, each dated the Closing Date, Date and addressed to the RepresentativesRepresentative, substantially in the forms of Exhibit D, Exhibit E and Exhibit F hereto, respectively.
(d) [Reserved].
(e) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership CIHC shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer Chairman of the Company, ’s Board of Directors or one of its Co-Chief Executive Officers and by executive officers the principal financial or accounting officer of the Operating PartnershipCompany, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(gf) The Company CIHC shall have furnished to the Representatives Representative a certificate of the Companycertificate, signed by the Chief Financial Officer an authorized signatory of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling StockholderCIHC, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the Selling Stockholder CIHC in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ig) On The Company shall have requested and caused KPMG LLP to have furnished to the date of this Agreement, Representative and on CIHC at the Execution Time and at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives“comfort” letters, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the RepresentativesRepresentative, containing statements and information confirming that it is an independent registered public accounting firm within the meaning of the type customarily included in accountants’ “comfort letters” to underwriters with respect to Act and the financial statements Exchange Act and certain financial information included or incorporated the applicable rules and regulations adopted by reference the Commission and the PCAOB substantially in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such dateform of Exhibit G hereto.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(li) Subsequent The company shall have furnished to the Execution Time, (i) there shall not have been any decrease in the rating of any Representative a certificate of the Company’s or , signed by its chief financial officer, substantially in the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) form of Exhibit H hereto, at the Exchange Act), Execution Time and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of at the Company’s debt securitiesClosing Date.
(mj) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders CIHC shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(nk) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representative.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives Representative a letter substantially in the form of Exhibit A I hereto from each officer and director of the Company and each officer of the other persons Company listed on Schedule IV 6(l) hereto and addressed to the RepresentativesRepresentative. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders CIHC in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx XxxxxxFour Times Square, Xxx XxxxNew York, XX 00000New York, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company Representatives shall have requested received (i) the opinion and caused negative assurance letter of Xxxxx Lovells US Xxxx & Xxxxxxxx LLP, outside counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex ICompany, dated the Closing Date and addressed to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their effect as set forth on Exhibit A hereto, (ii) the opinion substantially in of Xxxxxx Xxxxxx Morandi, Esq., Chief Legal Officer of the form attached hereto as Annex IICompany, dated the Closing DateDate and addressed to the Representatives, to the effect set forth on Exhibit C hereto, and (iii) the opinion of Xxxxxxxx & Worcester LLP, special tax counsel for the Company, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) [Reserved].
(ec) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxx Xxxxxx & Xxxxxxx & Xxxx LLPllp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) , there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or other), business, properties or results of operation of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ge) The Company Representatives shall have furnished to received from PricewaterhouseCoopers, LLP (US), at the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated Execution Time and at the Closing Date, and addressed “comfort” letters (which may refer to letters previously delivered to the Representatives to the effect that:
(i) the representations and warranties Representatives), dated respectively as of the Selling Stockholder in this Agreement are true and correct on Execution Time and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements Date and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letterscomfort” letters to underwriters with respect to the financial statements and certain financial information included of the Company and its subsidiaries contained or incorporated by reference in the Registration Statement, each of the Disclosure Package and the Final Prospectus, confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the PCAOB; providedprovided that the “comfort” letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(f) The Representatives shall have received from PricewaterhouseCoopers, LLP (UK), at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date and each in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort” letters to underwriters with respect to the financial statements and certain financial information of Telecity and its subsidiaries contained or incorporated by reference in each of the Disclosure Package and the Final Prospectus, confirming that PricewaterhouseCoopers, LLP (UK) are independent certified public accountants with respect to Telecity and its subsidiaries under Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants (“AICPA”), and its rulings and interpretations; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days two Business Days prior to such datethe Closing Date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(lh) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of under the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securitiespossible change.
(mi) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form executed copies of Exhibit A hereto “lock-up” agreements from each executive officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to hereto, each in the Representativesform of Exhibit B hereto. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxx Xxxxxx & Xxxxxxx & Xxxx LLPllp, counsel for the Underwriters, at 00 Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Notes will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, Chase or The Chase Manhattan Corporation which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical to market the Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, Chase or The Chase Manhattan Corporation on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Notes.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx Wood LLP, counsel for to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesNotes, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipBank, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus Date and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives effect (a) that under current law the Notes will be characterized as debt, and counsel the Trust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the Underwritersqualifications set forth therein, this Agreement the statements made in the Prospectus Supplement under the caption "Certain Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal tax law and all obligations regulations or legal conclusions with respect thereto, constitute accurate summaries of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing DateUnited States federal income tax matters described therein.
Appears in 1 contract
Samples: Note Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US & XxXxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives., substantially in the form of Exhibit B.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx XxXxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives., substantially in the form of Exhibit C.
(d) [Reserved].
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer its principal executive officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnershipprincipal financial officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(hf) Each Selling Stockholder shall have furnished to the Representatives a certificate of the certificate, signed by such Selling Stockholder, Stockholder and dated the Closing Date, and addressed to the Representatives to the effect that:
(i) that the representations and warranties of the such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date, with Date to the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ig) On The Company shall have requested and caused BDO Xxxxxxx, LLP to have furnished to the date of this Agreement, Representatives at the Execution Time and on at the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representativesletters, at the request dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference effect set forth in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.Annex B.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(nj) The Securities shall have been listed and admitted and authorized for trading on NASDAQ, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A A-1 hereto from each officer and director of the Company and each of the other persons stockholders listed on Schedule IV hereto Exhibit A-2 addressed to the Representatives.
(l) The Company shall have furnished to the Representatives a certificate of the Company, signed by its principal financial officer, dated the date hereof substantially in the form of Exhibit D hereto. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx 0000 Xx Xxxxxx Xxxx, XX 00000Xxxxx Xxxx, on Xxxxxxxxxx, xx the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives Representative their written opinion and letter substantially in the form attached hereto as Annex Inegative assurance letters, each dated the Closing Date and addressed to the RepresentativesUnderwriters, in each case in form and substance reasonably satisfactory to the Representative.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx Xxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives Representative their written opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the RepresentativesRepresentative in form and substance reasonably satisfactory to the Representative.
(d) [Reserved].
(e) The Representatives Representative shall have received from Skadden, Arps, Slate, Xxxxxx Xxxxxx & Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such their written opinion or opinionsand negative assurance letters, each dated the Closing Date, Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment amendments or supplement supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representative a certificate, signed by the Chief Financial Officer of such Selling Stockholder, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused (i) Deloitte & Touche LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, letters with respect to the financial statements and certain financial information of the Nesco Holdings, Inc. contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Final Prospectus, as applicable (which may refer to letters previously delivered to one or more of the Representative) and (ii) Deloitte & Touche LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, letters with respect to the financial statements and certain financial information of the Partnership contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Final Prospectus, as applicable (which may refer to letters previously delivered to one or more of the Representative), in each case, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative.
(h) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, letters with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Final Prospectus (which may refer to letters previously delivered to one or more of the Representative), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative.
(i) The Company shall have furnished to the Representative a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of its chief financial officer with respect to certain financial data contained in the Disclosure Package and the Final Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative.
(j) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders, officers and directors of the Company as set forth on Schedule V hereto, relating to sales and certain other dispositions of shares of Stock or certain other securities, delivered to you on or before the date hereof, shall be full force and effect on the Closing Date.
(k) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section for purposes of Rule 3(a)(62) of under the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings 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 Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representativespossible change. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, on the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and Selling Stockholders 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Custom Truck One Source, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US required Xxxxxxx Procter LLP, counsel for the Company and the Operating PartnershipCompany, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Iopinion, dated the Closing Date and addressed to the Representatives, in substance and form reasonably acceptable to the Representatives.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, Date and addressed to the Representatives, in substance and form reasonably acceptable to the Representatives.
(d) [Reserved].
(e) The Representatives shall have received from SkaddenXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLPP.C., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership each Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer chief executive officer and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(gf) The Company shall have furnished requested and required PricewaterhouseCoopers LLP to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of at the Selling Stockholder, dated Execution Time and at the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties letters, dated respectively as of the Selling Stockholder in this Agreement are true and correct on Execution Time and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” letters to underwriters with respect to the financial statements and certain financial information included or incorporated by reference contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” off date no more than three business days prior to such dateClosing Date.
(jg) In order At the Execution Time and on the Closing Date or any subsequent Option Securities Closing Date, the Company shall have furnished to document the Underwriters’ compliance with Representatives a certificate, dated the reporting respective dates of delivery thereof and withholding provisions addressed to the Representatives, of the Tax Equity and Fiscal Responsibility Act of 1982 its chief financial officer with respect to certain financial data contained in the transactions herein contemplatedDisclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), providing “management comfort” with respect to such Selling Stockholder will deliver information, in form and substance reasonably satisfactory to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)Representatives.
(kh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change, change or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions decrease specified in the ordinary course letter or letters referred to in paragraph (f) of businessthis Section 6 or (ii) any Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) ), the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereofthereto), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(li) Subsequent to the Execution TimeTime and prior to the Closing Date, (i) there shall not have occurred any downgrading, nor shall any notice have been given of any decrease 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 of accorded any of the Company’s securities of the Company or the Operating Partnership’s debt securities any of its subsidiaries by any “nationally recognized statistical rating organization,” (as such term is defined in Section 3(a)(62) of the Securities Exchange Act).
(j) The Securities shall have been listed and admitted and authorized for trading on the Stock Exchange, and (ii) no satisfactory evidence of such organization actions shall have publicly announced that it has under surveillance or reviewbeen provided to the Representatives.
(k) The lock-up agreements, with possible negative implicationseach substantially in the form of Exhibit A hereto, its ratings between you and the Selling Stockholders and executive officers and directors of any the Company relating to sales and certain other dispositions of securities of the Company’s debt securities, delivered to you on or before the Execution Time, shall be full force and effect at the Execution Time.
(ml) Prior to the Closing Date, the Company, the Operating Partnership Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholders Stockholder in writing writing, or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skaddento Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLPP.C., counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Underwriters on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall Certificates will be subject to the accuracy of the representations and warranties on the part of the Company Bank herein on the date hereof and the Selling Stockholders contained herein as of the Execution Time, the Closing Date pursuant to Section 4 hereofDate, to the accuracy of the statements of officers of the Company and the Selling Stockholders Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, the Representative shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, and any supplement thereto, Prospectus Supplement shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by ) of the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank, Chase or The Chase Manhattan Corporation which, in the reasonable judgment of the Representative, materially impairs the investment quality of the Certificates or makes it impractical to market the Certificates; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank, Chase or The Chase Manhattan Corporation on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Certificates.
(d) The Company Representative shall have requested and caused Xxxxx Lovells US LLP, counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ireceived opinions, dated the Closing Date and addressed reasonably satisfactory, when taken together, in form and substance to the Representatives.
(c) The Selling Stockholders shall have requested and caused Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the Selling Stockholders, to have furnished to the Representatives their opinion substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved]type of transaction contemplated by this Agreement.
(e) The Representatives Representative shall have received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to certain matters relating to the transfers of the Receivables from the Bank to the Trust and with respect to a grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the perfection of the Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx Wood LLP, counsel for to the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesCertificates, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Operating Partnership Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company Representative shall have furnished received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, and by executive officers of the Operating PartnershipBank, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus Date and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date, and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each Selling Stockholder shall have furnished to the Representatives a certificate of the Selling Stockholder, dated the Closing Date, and addressed to the Representatives to the effect that:
(i) the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on such date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) On the date of this Agreement, and on the Closing Date, each of Ernst & Young LLP and Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(m) Prior to the Closing Date, the Company, the Operating Partnership and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each of the other persons listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives effect (a) that under current law the Notes will be characterized as debt, and counsel the Trust will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the Underwritersqualifications set forth therein, this Agreement the statements made in the Prospectus Supplement under the caption "Certain Federal Income Tax Consequences" insofar as they purport to constitute summaries of matters of United States federal tax law and all obligations regulations or legal conclusions with respect thereto, constitute accurate summaries of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and Selling Stockholders matters described therein 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 Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Dateall material respects.
Appears in 1 contract
Samples: Certificate Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Lovells US LLPXxxxxxxxxxx X. Xxxxxxxxx, counsel for the Company Senior Vice President and the Operating PartnershipGeneral Counsel of Liberty Mutual Group Inc., to have furnished to the Representatives their opinion and letter substantially in the form attached hereto as Annex Ihis opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit B-1, and the Company shall have requested and caused Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of the Company, to have furnished to the Representatives his negative assurance letter, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit B-2.
(c) The Selling Stockholders Company shall have requested and caused Xxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxxx Xxxx LLP, counsel for the Company and the Selling StockholdersStockholder, to have furnished to the Representatives their opinion corporate opinion, negative assurance letter and tax opinion, each dated the Closing Date and addressed to the Representatives, substantially in the forms attached hereto as Exhibit C-1, Exhibit C-2 and Exhibit C-3, respectively.
(d) The Company shall have requested and caused XxXxxxxxx Will & Xxxxx LLP, employee benefits and compensation counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Annex II, dated the Closing Date, and addressed to the Representatives.
(d) [Reserved].Exhibit D.
(e) The Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer President or a Senior Vice President and the Chief Financial Officer principal financial or accounting officer of the Company, and by executive officers of the Operating Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the SecuritiesOffering, and this Agreement and that:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date, Date with the same effect as if made on such date, the Closing Date and each of the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the date hereof, substantially in the form attached hereto as Annex III.
(h) Each In the event that the Underwriters’ over-allotment option is exercised, the Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the President or a Senior Vice President and the principal financial or accounting officer of the Selling Stockholder, dated the Closing DateDate and any settlement date pursuant to Section 3 hereto, and addressed to the Representatives to the effect that:
(i) that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date, with Date and any settlement date to the same effect as if made on the Closing Date and such date; and
(ii) settlement date and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate and such settlement date.
(i) On the date of this Agreement, The Company shall have requested and on the Closing Date, each of caused Ernst & Young LLP and Deloitte & Touche LLP shall to have furnished to the Representatives, at the request Execution Time and at the Closing Date, “comfort” letters, dated respectively as of the Company, a letter, dated Execution Time and as of the respective dates of delivery thereof and addressed to the UnderwritersClosing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such date.
(j) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (A) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (B) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operationsearnings, business, business or properties or prospects of the Company and its subsidiaries, Consolidated Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (A) or (B) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering Offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any of the Company’s debt securities.
(mk) Prior to the Closing DateDate and any settlement date pursuant to Section 3 hereto, the Company, the Operating Partnership Company and the Selling Stockholders Stockholder (if applicable) shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the claims paying rating or claims paying ratings outlook of any of the Company’s or any Insurance Subsidiaries’ claims paying ratings by A.M. Best Company, Inc., Standard & Poor’s Rating Group, Xxxxx’x Investor Service, Inc. 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.
(m) The Securities shall have been listed and admitted and authorized for trading on NASDAQ, subject to official notice of issuance, and evidence of such actions shall have been provided to the Representatives.
(n) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from Liberty Mutual Holding Company, Inc., a Massachusetts mutual insurance holding company and the ultimate parent of the Company, and each officer and director of the Company and each officer of the other persons Company listed on Schedule IV hereto 6(n) hereto, in each case addressed to the Representatives.
(o) Prior to or substantially concurrent with the Closing Date, the Transactions shall have been completed as described therein. If any of the conditions specified in this Section 7 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders Stockholder, if applicable, in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxxx Xxxxx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Liberty Mutual Agency Corp)
