Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions: (i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures; (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof; (iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and (iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus. (c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. (d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein. (f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. (g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein. (h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date. (i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 7 contracts
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/), Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/), Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hxxx & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 5 contracts
Samples: Underwriting Agreement (Eversource Energy), Underwriting Agreement (Eversource Energy), Underwriting Agreement (Eversource Energy)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase the Underwritten Securities pursuant to this Agreement are subject, in subject to the discretion following conditions as of the Representatives, Closing Date:
(a) Each of the obligations of each of the Depositor and the Seller required to be performed by it on or prior to the condition that Closing Date pursuant to the terms of the Basic Documents to which it is a party shall have been duly performed and complied with, all of the representations and warranties and other statements of the Bank Depositor and the Seller (other than any representation or warranty as to the Mortgage Loans or other Collateral) under any of the Basic Documents to which it is a party shall be true and correct in this Agreement all material respects as at of the date hereof and atClosing Date, and as of, the Time of Delivery, are true and correct, the condition that the Bank no event shall have performed all occurred that, with notice or the passage of its obligations hereunder theretofore time, would constitute a default under any of the Basic Documents to be performedwhich it is a party, and the following additional conditions:Representative shall have received certificates to the effect of the foregoing, each signed by an authorized officer of the Depositor or the Seller, as applicable.
(b) Prior to the Closing Date, (i) The Canadian Prospectus the Depositor shall have been filed with received verbal confirmation of the Reviewing Authority under effectiveness of the Shelf Procedures;
Registration Statement and (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding proceedings for that purpose shall have been initiated orinstituted, or to the knowledge of the BankDepositor shall be contemplated, threatened by the Reviewing Authority Commission. Any request of the Commission for inclusion of additional information in the Registration Statement or the Commission; and
(iv) all requests for additional information on the part of the Reviewing Authority or the Commission Prospectus shall have been complied with to the Representatives’ reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectuswith.
(c) The Underwriters Representative shall have received letters dated on or before the Closing Date a certificatedate on which the Prospectus Supplement is dated and printed, dated in form and substance reasonably acceptable to the Closing Date Underwriters and signed their counsel, prepared by Deloitte & Touche LLP (i) regarding certain numerical information contained or incorporated by reference in the Preliminary Prospectus Supplement and the Prospectus Supplement and (ii) relating to certain agreed upon procedures as requested by the Underwriters relating to the Mortgage Loans, or shall have waived compliance with this condition.
(d) The Securities shall have received the ratings specified in the Prospectus Supplement.
(e) The Representative shall have received the following additional closing documents, in form and substance reasonably satisfactory to the Representative and its counsel:
(i) the Basic Documents and all documents required thereunder, duly executed and delivered by each of the parties thereto other than the Underwriters and their affiliates;
(ii) an officer’s certificate of an officer of the BankSeller and an officer’s certificate of an officer of the Depositor, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct each case dated as of the Closing Date and that reasonably satisfactory in form and substance to the Bank has complied Representative and counsel for the Underwriters with all a copy of the agreements and satisfied all organizational documents of the conditions on its part to be performed Seller or satisfied hereunder on or before the Closing Date.Depositor, as applicable;
(diii) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian in-house counsel for to the BankSeller, dated the Closing Date, reasonably satisfactory in substantially form and substance to the form attached hereto Representative and counsel for the Underwriters, as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.various corporate matters;
(fiv) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States in-house counsel for to the BankDepositor, dated the Closing Date, reasonably satisfactory in substantially form and substance to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Representative and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, as to various corporate matters;
(v) an opinion of Sidley Austin LLP, counsel to the Underwriters, dated the Closing Date, reasonably satisfactory in form and substance to the Representative as to various matters;
(vi) a negative assurance letter of Sidley Austin LLP with respect to each Prospectus;
(vii) such opinions of XxXxx Xxxxxx LLP, counsel to the Depositor, in form reasonably satisfactory to the Representative, counsel for the Underwriters, and the Rating Agencies as to such additional matters not opined to in the opinion delivered pursuant to clause (iv) above as shall be required for the assignment of the ratings specified in the Prospectus to the Underwritten Securities;
(viii) a negative assurance letter of XxXxx Xxxxxx LLP with respect to each Prospectus, reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters;
(ix) an opinion of counsel to the Trustee, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of Representative, counsel for the Bank described in subsections Underwriters and the Rating Agencies; and
(ex) and (f) above shall be rendered to the Underwriters at the request an officer’s certificate of an officer of the Bank and shall so state therein.
(h) The Underwriters shall have receivedTrustee, on each dated as of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, reasonably satisfactory in form and substance satisfactory to the Representative and counsel for the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(if) Prior All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to or on the Closing Date, Representative and counsel for the Representatives Underwriters.
(g) The Seller and the Depositor shall have been furnished by the Bank Representative with such additional other certificates of its officers or others and such other documents and certificates or opinions as the Representatives Representative or counsel for the Underwriters may reasonably request.
(h) Subsequent to the execution and delivery of this Agreement none of the following shall have occurred: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by Federal or New York state authorities; (iii) the United States shall have become engaged in material hostilities, there shall have been an escalation of such hostilities involving the United States or there shall have been a declaration of war by the United States; (iv) a material disruption in settlement or clearing operations shall occur; or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets of the United States shall be such) that is material and adverse and, in the case of any of the events specified in clauses (i) through (v), either individually or together with any other such event specified in clauses (i) through (v) makes it, in the reasonable judgment of the Representative, impractical or inadvisable to market the Underwritten Securities.
(i) There shall not have occurred any development that has caused a material adverse change in the financial condition or business operations of the Seller or the Depositor, which adverse change makes it impractical or inadvisable to market the Underwritten Securities. All opinions, certificates, letters and documents referred to If any condition specified in this Section 5 will 6 shall not have been fulfilled when and as required to be in compliance with the provisions of fulfilled, this Agreement only if they are satisfactory in form and substance may be terminated by the Underwriters by notice to the Representatives and to counsel for the Underwriters. The Bank will furnish Depositor at any time at or prior to the Representatives conformed copies Closing Date, and such termination shall be without liability of such opinions, certificates, letters any party to any other party except as provided in Sections 7 and other documents in such number as the Representatives will reasonably request8.
Appears in 5 contracts
Samples: Underwriting Agreement (Bayview Financial Mortgage Pass-Through Trust 2006-C), Underwriting Agreement (Bayview 2006-B), Underwriting Agreement (Bayview Financial Mortgage Pass-Through Trust 2007-A)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 5 contracts
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/), Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/), Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject, in hereunder as to the discretion of Securities to be delivered at the Representatives, Closing Time shall be subject to the condition that all representations and warranties made by the Company, the Adviser and other statements the Administrator herein are, at and as of the Bank in this Agreement as at the date hereof and atClosing Time, and as of, the Time of Delivery, are true and correct, as if then made, to the condition that due performance by the Bank shall have performed all Company of its obligations hereunder theretofore to be performedhereunder, and to the satisfaction (or waiver by the Representatives in their sole discretion) of the following additional conditions:
(ia) The Canadian Prospectus Registration Statement is effective and shall be available for the sale of all Securities to be issued and sold hereunder. All filings with the Commission required by Rule 424, Rule 497 or Rule 433, as applicable, under the 1933 Act to have been filed prior to the sale of Securities hereunder shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case made within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;by Rule 424, Rule 497 or Rule 433, as applicable, under the 1933 Act.
(iiib) no order having the effect of ceasing or suspending the distribution None of the Securities following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement, the Pricing Disclosure Package or the Prospectus relating to or affecting the Securities; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of, or preventing the use of, the Registration Statement, the Pricing Disclosure Package or the Prospectus, or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or any part thereof or order pursuant to Section 8(e) of the 1940 Act having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated orproceedings therefor initiated, or to the knowledge of the BankCompany, threatened by the Reviewing Authority Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Securities for sale in any jurisdiction or the Commissioninitiation or threatening of any proceeding for such purpose; and
(iv) all requests for additional information on the part occurrence of any event that makes any statement made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement, the Pricing Disclosure Package or Prospectus so that, in the case of the Reviewing Authority Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Pricing Disclosure Package or the Commission shall have been complied with Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Representatives’ reasonable satisfactionRegistration Statement would be appropriate.
(bc) Subsequent No Underwriter shall have discovered and disclosed to the execution Company on or prior to the Closing Time that the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP, counsel to the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and delivery is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Securities, the Registration Statement, the Pricing Disclosure Package and the Prospectus, and all other legal matters relating to this Agreement and prior the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(e) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall have furnished to the Time Underwriters its written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Time, substantially in the form of Delivery:Exhibit A hereto.
(f) The Company’s general counsel shall have furnished to the Underwriters its written opinion, addressed to the Underwriters and dated the Closing Time, substantially in the form of Exhibit B hereto.
(g) Xxxxxxx LLP, shall have furnished to the Underwriters its written opinion, as Maryland counsel to the Company, addressed to the Underwriters and dated the Closing Time, substantially in the form of Exhibit C hereto.
(h) The Underwriters shall have received from Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Time, with respect to the issuance and sale of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(i) At the time of execution of this Agreement, the Underwriters shall have received from BDO USA, LLP a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, the Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) With respect to the letter of BDO USA, LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Underwriters a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated as of the Closing Time (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Time, (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package and the Prospectus, as of a date not more than three days prior to the Closing Time), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(k) Except as described in the Pricing Disclosure Package or the Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date, there shall not have occurred been any downgrading, nor shall any notice have been given of any intended change in the capital stock or potential downgrading or of any review for a possible change that does not indicate the direction long-term debt of the possible change, in the rating accorded any of the debt securities of the Bank Company or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred subsidiaries or any change, or any development involving a prospective change, in or affecting the condition, financial or otherwise, or in the earnings, net asset value, prospects, business or operations operations, whether or not arising from transactions in the ordinary course of business, of the Bank Company and its subsidiaries, taken considered as a wholeone entity, from that set forth the effect of which, in any such case described in clause (i) or (ii), is, individually or in the Time of Sale Prospectus thataggregate, in the judgment of the Representatives, is so material and adverse and that makes it, in as to make it impracticable or inadvisable to proceed with the judgment offering or the delivery of the Representatives, impracticable to market Securities being delivered on the Securities Closing Time on the terms and in the manner contemplated in the Time of Sale Pricing Disclosure Package and the Prospectus.
(cl) The Underwriters At or prior to the Closing Time, the Company and the Trustee shall have received executed and delivered the Supplemental Indenture.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the NASDAQ or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Underwriters, impracticable or inadvisable to proceed with the offering or delivery of the Securities being delivered on the Closing Date a certificateTime on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus or that, dated in the judgment of the Representatives, would materially and adversely affect the financial markets or the markets for the Securities.
(n) At the Closing Date Time, the Securities shall be rated at least BBB- by Standard & Poor’s Ratings Services, at least BBB- by Xxxxx Bond Rating Agency, Inc. and signed at least Baa3 by an officer Xxxxx’x Investors Service.
(o) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined in Section 3(a)(62) of the BankExchange Act, in his and (ii) no such organization shall have publicly announced that it has under surveillance or her capacity as such officer onlyreview, with possible negative implications, its rating of any of the Company’s debt securities.
(p) The Company shall have furnished or caused to be furnished to the effect set forth in Section 5(a)(iii) Underwriters at the Closing Time certificates of officers of the Company, the Adviser and Section 5(b)(i) above and the Administrator satisfactory to the effect that Underwriters as to the accuracy of the representations and warranties of the Bank contained in this Agreement are true Company, the Adviser and correct the Administrator herein at and as of the Closing Date and that Time, as to the Bank has complied with performance by the Company of all of the agreements and satisfied all of the conditions on its part obligations hereunder to be performed at or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior Time and as to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates other matters as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificatesletters, letters evidence and documents referred to certificates mentioned above or elsewhere in this Section 5 will Agreement shall be deemed to be in compliance with the provisions of this Agreement hereof only if they are satisfactory in form and substance to the Representatives and reasonably satisfactory to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 4 contracts
Samples: Underwriting Agreement (Prospect Capital Corp), Underwriting Agreement (Prospect Capital Corp), Underwriting Agreement (Prospect Capital Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank Company in this or incorporated by reference in the Pricing Agreement as relating to such Designated Securities are, at the date hereof and at, and as of, of the Time of DeliveryDelivery for such Designated Securities, are true and correct, the condition that the Bank Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with as amended or supplemented in relation to the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus applicable Designated Securities shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case Rule 424(b) within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Securities Act and in accordance with Section 6(a4(a)(i) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent Counsel for the Underwriters shall have furnished to the execution and delivery of this Agreement and prior to Representatives such opinion or opinions, dated the Time of Delivery:
(i) there shall not have occurred any downgradingDelivery for such Designated Securities, 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 with respect to the direction incorporation of the possible changeCompany, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of Indenture, the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Designated Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof supplemented and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates other related matters as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred such counsel shall have received such papers and information as they may reasonably request to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance enable them to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of pass upon such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.matters;
Appears in 4 contracts
Samples: Underwriting Agreement (Abbott Laboratories), Underwriting Agreement (Abbott Laboratories), Underwriting Agreement (Abbott Laboratories)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Xxxxxxx X. Xxxxxxxx, Esq., Deputy General Counsel and Corporate Secretary of BlakeEversource Energy Service Company, Xxxxxxx & Xxxxxxx LLPa service company affiliate of Eversource Energy, Canadian and counsel for to the BankCompany, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of the Province Commonwealth of Ontario Massachusetts, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated or otherwise formed, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of Canada its jurisdiction of incorporation or formation, has the corporate or limited liability company power, as applicable, and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Securities have been duly authorized and executed and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(vi) (A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law, rule or regulation or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries or any of their respective properties that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Securities;
(vii) the statements in (A) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Notes”, “Underwriting” and “Description of Securities Registered”, (B) in the Registration Statement under Item 15, (C) in “Item 3. Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Pricing Disclosure Package and the Prospectus and (D) in “Item 1. Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and each of the Preliminary Prospectus and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Xxxxxx, Hall & Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 4 contracts
Samples: Underwriting Agreement (Eversource Energy), Underwriting Agreement (Eversource Energy), Underwriting Agreement (Eversource Energy)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
Procedures and (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.K. of Form F-10 F-9 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesCanadian Prospectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of BlakeOsler, Xxxxxxx Xxxxxx & Xxxxxxx Harcourt LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. BlakeOsler, Xxxxxxx Xxxxxx & Xxxxxxx Harcourt LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx Shearman & Sterling LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx Shearman & Sterling LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxxxxx & Overy Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx Xxxxxxxx & Xxxxx Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young KPMG LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 4 contracts
Samples: Underwriting Agreement (Bank of Nova Scotia /), Underwriting Agreement (Bank of Nova Scotia /), Underwriting Agreement (Bank of Nova Scotia /)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
Procedures and (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.K. of Form F-10 F-9 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesCanadian Prospectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of BlakeOsler, Xxxxxxx Xxxxxx & Xxxxxxx Harcourt LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. BlakeOsler, Xxxxxxx Xxxxxx & Xxxxxxx LLP Harcourt LLP, as Canadian counsel for the Bank, may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx Osler, Xxxxxx & Harcourt LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP Osler, Xxxxxx & Harcourt LLP, as United States counsel for the Bank, may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxxxxx & Overy Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx Xxxxxxxx & Xxxxx Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young KPMG LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 3 contracts
Samples: Underwriting Agreement (Bank of Nova Scotia /), Underwriting Agreement (Bank of Nova Scotia /), Underwriting Agreement (Bank of Nova Scotia /)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Act and in accordance with Section 6(a7(a) hereof;
(iii; the final term sheet contemplated by Section 7(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ your reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded of any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any changebeen, since the date of this Agreement or any development involving a prospective change, since the respective dates as of which information is given in the conditionPricing Prospectus and Prospectus, any material adverse change in the financial or otherwise, condition or in the earnings, business or operations earnings of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date Date, a certificate, dated as of the date of the Closing Date and signed by an the chief executive officer, the chief financial officer or the treasurer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii6(b)(i) and Section 5(b)(i) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that (ii) the Bank Company 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 hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion or opinions and a negative assurances letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the date of the Closing Date, in the form previously agreed.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian the Company’s general counsel for the Bankor any associate general counsel, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpreviously agreed.
(f) The Underwriters shall have received on the Closing Date Date, an opinion of Xxxxx Xxxxx Xxxxxxxx & Sterling LLP, United States counsel for the BankUnderwriters, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of Americapreviously agreed.
(g) The Underwriters and the board of directors of the Company shall have received on the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also on the Closing Date an opinion of Xxxxx & Overy LLPDate, United States counsel for the Underwritersa letter, dated the Closing Daterespective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 3 contracts
Samples: Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Act and in accordance with Section 6(a7(a) hereof;
(iii; the final term sheet contemplated by Section 7(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ your reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded of any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any changebeen, since the date of this Agreement or any development involving a prospective change, since the respective dates as of which information is given in the conditionPricing Prospectus and Prospectus, any material adverse change in the financial or otherwise, condition or in the earnings, business or operations earnings of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date Date, a certificate, dated as of the date of the Closing Date and signed by an the chief executive officer, the chief financial officer or the treasurer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii6(b)(i) and Section 5(b)(i) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that (ii) the Bank Company 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 hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion or opinions and a negative assurances letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the date of the Closing Date, in the form previously agreed.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian the Company’s general counsel for the Bankor any associate general counsel, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpreviously agreed.
(f) The Underwriters shall have received on the Closing Date Date, an opinion and a negative assurances letter of Xxxxx Xxxxx Shearman & Sterling LLP, United States counsel for the BankUnderwriters, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of Americapreviously agreed.
(g) The Underwriters and the board of directors of the Company shall have received on the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also on the Closing Date an opinion of Xxxxx & Overy LLPDate, United States counsel for the Underwritersa letter, dated the Closing Daterespective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 3 contracts
Samples: Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank Company in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority and each of the other Canadian Securities Regulators under the Shelf Procedures;
Procedures and (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.L. of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the BankCompany, threatened by the Reviewing Authority Canadian Securities Regulators or the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority Canadian Securities Regulators or the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries by any “nationally recognized statistical rating organization,” as such term is used defined in section Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ed) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx Torys LLP, Canadian counsel for the BankCompany, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx Torys LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(fe) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxxx Debevoise & Xxxxxxxx LLP, United States counsel for the BankCompany, each dated the Closing Date, in substantially the form forms attached hereto as Exhibit A-2A-2 and Exhibit A-3. Xxxxx Xxxxx Debevoise & Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(f) The Underwriters shall have received on the Closing Date opinions of local counsel for the Company (which may include in-house counsel), each dated the Closing Date, to the effect that each Restricted Subsidiary (as defined in the Base Indenture) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx in-house counsel for the Company, dated the Closing Date, in substantially the form attached hereto as Exhibit A-4.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Overy Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxx Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank Company described in subsections (ed) and (fe) above shall be rendered to the Underwriters at the request of the Bank Company and shall so state therein.
(hi) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 3 contracts
Samples: Underwriting Agreement (Manulife Financial Corp), Underwriting Agreement (Manulife Financial Corp), Underwriting Agreement (Manulife Financial Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
; (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.K. of Form F-10 F-9 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
; (iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
and (iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Overy Xxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 6 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/), Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) (i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iiiii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iviii) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/), Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop No order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued be in effect, and no proceeding for that such purpose pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission, the Prospectus and each issuer free writing prospectus shall have been initiated ortimely filed with the Commission under the Securities Act (in the case of an issuer free writing prospectus, to the knowledge of extent required by Rule 433 under the Bank, threatened Securities Act) and in accordance with Section 1(c) hereof; and all requests by the Reviewing Authority or the Commission; and
(iv) all requests Commission for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the reasonable satisfaction of the Representatives’ reasonable satisfaction.
(b) The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date or the Additional Closing Date, as the case may be.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries by any “nationally recognized statistical rating organization,” as such term is used defined in section Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, management or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representativesyour judgment, impracticable to market the Securities Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(cd) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed on behalf of the Company by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 5(a), 5(b) and Section 5(b)(i5(c)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Banka certificate, dated the date hereof, of the principal financial officer of the Company in form and substance reasonably satisfactory to the Representatives. On the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under Underwriters shall have received from the laws principal financial officer of the Province Company a certificate, dated as of Ontario and the federal laws of Canada applicable thereinClosing Date, to the effect that he reaffirms the statements made in the certificate furnished pursuant to Section 5(e) hereof.
(f) The Underwriters shall have received on the Closing Date (i) an opinion and (ii) a negative assurance of Xxxxx Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, United States outside counsel for the BankCompany, dated the Closing Date, in substantially form and substance reasonably satisfactory to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of AmericaRepresentatives.
(g) The Underwriters shall have received on the Closing Date an opinion of intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(h) The Underwriters shall have received on the Closing Date an opinion of each of Xxxxx, Xxxxxx & XxXxxxxx, P.C. and XxXxxxxx Xxxxxxx LLC, regulatory counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(i) The Underwriters shall have received on the Closing Date (i) an opinion and (ii) a negative assurance of Xxxxx Xxxx & Overy Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. With respect to Section 5(f) above, Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP and with respect to Section 5(i)(ii) above, Xxxxx Xxxx & Xxxxx Xxxxxxxx LLP may limit state that their opinion to matters arising under opinions and beliefs are based upon their participation in the laws preparation of the State Registration Statement, the Time of New York Sale Prospectus and the federal laws Prospectus and any amendments or supplements thereto and review and discussion of the United States of Americacontents thereof, but are without independent check or verification, except as specified. The opinions opinion of counsel for the Bank Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP described in subsections (eSection 5(f) above and the opinions described in Sections 5(g) and (f5(h) above shall be rendered to the Underwriters at the request of the Bank Company and shall so state therein.
(hj) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable Prospectus; provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut cut-off date” not earlier than the date hereof.
(k) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain stockholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(l) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(d) hereof remains true and correct as of such Option Closing Date;
(ii) a certificate, dated the Option Closing Date, from the principal financial officer of the Company, to the effect that he reaffirms the statements made in the certificate furnished pursuant to Section 5(e) hereof;
(iii) an opinion and a negative assurance letter of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(f) hereof;
(iv) an opinion of intellectual property counsel for the Company, dated the Option Closing Date, substantially in form and substance as the opinion delivered pursuant to Section 5(g) hereof;
(v) an opinion of each of Xxxxx, Xxxxxx & XxXxxxxx, P.C. and XxXxxxxx Xxxxxxx LLC, regulatory counsel for the Company, dated the Option Closing Date, substantially in form and substance as the opinions delivered pursuant to Section 5(h) hereof;
(vi) an opinion and a negative assurance of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter delivered pursuant to Section 5(i) hereof;
(vii) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, substantially in form and substance as the letter furnished to the Underwriters pursuant to Section 5(j) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off” date no more not earlier than three business days prior to the such Option Closing Date.; and
(iviii) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance request with the provisions of this Agreement only if they are satisfactory in form and substance respect to the Representatives good standing of the Company, the due authorization and issuance of the Additional Shares to counsel for the Underwriters. The Bank will furnish be sold on such Option Closing Date and other matters related to the Representatives conformed copies issuance of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestAdditional Shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Natera, Inc.), Underwriting Agreement (Natera, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Act and in accordance with Section 6(a7(a) hereof;
(iii; the final term sheet contemplated by Section 7(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ your reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded of any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Act; and
(ii) there shall not have occurred any changebeen, since the date of this Agreement or any development involving a prospective change, since the respective dates as of which information is given in the conditionPricing Prospectus and Prospectus, any material adverse change in the financial or otherwise, condition or in the earnings, business or operations earnings of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date Date, a certificate, dated as of the date of the Closing Date and signed by an the chief executive officer or the chief financial officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii6(b)(i) and Section 5(b)(i) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that (ii) the Bank Company 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 hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion or opinions and a negative assurances letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the date of the Closing Date, substantially in the forms set forth in Exhibit A.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian the Company’s general counsel for the Bankor any assistant general counsel, dated the date of the Closing Date, substantially in substantially the form attached hereto as set forth in Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.B.
(f) The Underwriters shall have received on the Closing Date Date, an opinion of Xxxxx Xxxxx Xxxxxxxx & Sterling LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the date of the Closing Date, covering the matters set forth in Exhibit C.
(g) The Underwriters and the board of directors of the Company shall have received on the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also on the Closing Date, a letter, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Rxxxxxx X. Xxxxxxxx, Esq., Deputy General Counsel and Corporate Secretary of BlakeEversource Energy Service Company, Xxxxxxx & Xxxxxxx LLPa service company affiliate of Eversource Energy, Canadian and counsel for to the BankCompany, or other counsel reasonably acceptable to the Representatives, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of the Province Commonwealth of Ontario Massachusetts, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated or otherwise formed, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of Canada its jurisdiction of incorporation or formation, has the corporate or limited liability company power, as applicable, and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Securities have been duly authorized and executed and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(vi) (A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law, rule or regulation or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries or any of their respective properties that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Securities;
(vii) the statements in (A) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Notes”, “Underwriting” and “Description of Securities Registered”, (B) in the Registration Statement under Item 15, (C) in “Item 3. Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Pricing Disclosure Package and the Prospectus and (D) in “Item 1. Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, each of the Company and its subsidiaries (A) is in compliance with any and all applicable Environmental Laws, (B) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and each of the Preliminary Prospectus and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Cxxxxx, Hall & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Eversource Energy), Underwriting Agreement (Eversource Energy)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Blakefrom Xxxxxx, Xxxxxxx Xxxx & Xxxxxxx LLP, Canadian special counsel for the BankUnderwriters, an opinion dated the Closing DateDate and addressed to the Underwriters, in substantially with respect to such matters as the form attached hereto as Exhibit A-1. BlakeRepresentatives may reasonably require, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws Company shall have furnished to such counsel such documents as they request for the purpose of Canada applicable thereinenabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Eversource Energy), Underwriting Agreement (Eversource Energy)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Act and in accordance with Section 6(a7(a) hereof;
(iii; the final term sheet contemplated by Section 7(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ your reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded of any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Act; and
(ii) there shall not have occurred any changebeen, since the date of this Agreement or any development involving a prospective change, since the respective dates as of which information is given in the conditionPricing Prospectus and Prospectus, any material adverse change in the financial or otherwise, condition or in the earnings, business or operations earnings of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date Date, a certificate, dated as of the date of the Closing Date and signed by an the chief executive officer or the chief financial officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii6(b)(i) and Section 5(b)(i) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that (ii) the Bank Company 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 hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion or opinions and a negative assurances letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the date of the Closing Date, substantially in the forms set forth in Exhibit A.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian the Company’s general counsel for the Bankor any assistant general counsel, dated the date of the Closing Date, substantially in substantially the form attached hereto as set forth in Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.B.
(f) The Underwriters shall have received on the Closing Date Date, an opinion of Xxxxx Xxxxx Xxxxxxxx & Sterling LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the date of the Closing Date, covering the matters set forth in Exhibit C.
(g) The Underwriters and the board of directors of the Company shall have received on the date hereof, on the effective date of any post effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also on the Closing Date, a letter, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Amgen Inc), Underwriting Agreement (Amgen Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
; (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.K. of Form F-10 F-9 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
; (iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
and (iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62relation to Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesCanadian Prospectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Overy Xxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 6 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/), Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on each Closing Date are subjectsubject to the accuracy, in the discretion when made and as of the RepresentativesApplicable Time and on each Closing Date, of the representations and warranties of the Company contained herein, to the condition that all representations and warranties and other statements of performance by the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all Company of its respective obligations hereunder theretofore and to be performed, and the following additional further conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or No stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of thereof, preventing or suspending the use of any Prospectus, any Preliminary Prospectus, any Time of Sale Prospectus or any free writing prospectus relating to the Securities or any part thereof shall have been issued and and, to the Company’s knowledge, no proceeding proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) , and all requests for additional information on the part of the Reviewing Authority Commission (to be included or incorporated by reference in the Registration Statement or the Commission Prospectus or otherwise) shall have been complied with to the Representatives’ reasonable satisfactionsatisfaction of the Manager. The Rule 462(b) Registration Statement, if any, each free writing prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 6(a) and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE MKT or NASDAQ Global Market or minimum or maximum prices or maximum range for prices shall have been established on any such exchange by the Commission, by such exchange or by any other regulatory or governmental body having jurisdiction, or trading in any securities of the Company on the NASDAQ Global Market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) any moratorium on commercial banking activities shall have been declared by federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), if the effect of any such event specified in clause (iii) or (iv) make it, in the judgment of the Manager, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and prior to in the manner contemplated in the Registration Statement, the Time of Delivery:Sale Prospectus and the Prospectus.
(ic) Subsequent to the execution of this Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries Company by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and.
(d) (i) Since the date of the latest unaudited interim financial statements included in the Time of Sale Prospectus or the Prospectus or incorporated by reference in the Time of Sale Prospectus or the Prospectus as of the date hereof, the Company shall not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, (ii) since the respective dates as of which information is given in the Time of Sale Prospectus or the Prospectus and except as described in the Time of Sale Prospectus or the Prospectus, there shall not have been any change in the capital stock or increase in the long-term debt of the Company and (iii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition, financial or otherwise, or in or affecting the earningsrevenues, business business, assets, management, financial position, stockholders’ equity, operations or results of operations or prospects of the Bank and its subsidiaries, taken as a whole, Company from that set forth in the Time of Sale Prospectus thatas of the date of this Agreement the effect of which, in any such case described in clause (i), (ii) or (iii) of this paragraph 5(d), is, in the judgment of the RepresentativesManager, is so material and adverse and that makes it, in the judgment of the Representatives, as to make it impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(ce) The Underwriters shall have received on the each Closing Date a certificate, on behalf of the Company, dated the as of such Closing Date and signed by an the Chief Executive Officer or principal financial officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 5(c) and (d) above, to the effect that no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Prospectus, any Preliminary Prospectus, any Time of Sale Prospectus or any Free Writing Prospectus or any part thereof shall have been issued and, to the Company’s knowledge, no proceedings for that purpose or pursuant to Section 5(b)(i) above 8A under the Securities Act shall have been initiated or threatened by the Commission, and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the such Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the each Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the each Closing Date an opinion and negative assurance letter of Xxxxx Xxxxx Xxxxxx LLP, United States outside counsel for the BankCompany, dated the as of such Closing Date, substantially to the effect set forth in substantially the form attached hereto as Exhibit Exhibits A-1 and A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America, respectively, hereto.
(g) The Underwriters shall have received on the each Closing Date an opinion of Xxxxx XxXxxxx Xxxx PLLC, special intellectual property counsel for the Company, dated as of such Closing Date, substantially to the effect set forth in Exhibit B hereto.
(h) The Underwriters shall have received on each Closing Date an opinion of Xxxxxx & Overy Xxxxxxx LLP, United States counsel for the Underwriters, dated the as of such Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request to enable them to pass upon such matters.
(i) (i) At the time of execution of this Agreement, the Underwriters shall have received from E&Y a letter, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered Underwriters, addressed to the Underwriters at and dated the request date hereof (A) confirming that they are independent public accountants within the meaning of the Bank Securities Act and shall so state therein.
are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (hB) The Underwriters shall have receivedstating, on each as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Prospectus and the Closing DateProspectus, as of a letter dated date not more than three days prior to the date hereof or hereof), the Closing Date, as the case may be, in form conclusions and substance satisfactory findings of such firm with respect to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements financial information and information of the type other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateregistered public offerings.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank Company in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority and each of the other Canadian Securities Regulators under the Shelf Procedures;
Procedures and (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.L. of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the BankCompany, threatened by the Reviewing Authority Canadian Securities Regulators or the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority Canadian Securities Regulators or the Commission shall have been complied with to the Representatives’ ' reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is used defined in section Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ed) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx Torys LLP, Canadian counsel for the BankCompany, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx Torys LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(fe) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxxx Debevoise & Xxxxxxxx LLP, United States counsel for the BankCompany, each dated the Closing Date, in substantially the form forms attached hereto as Exhibit A-2A-2 and Exhibit A-3. Xxxxx Xxxxx Debevoise & Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(f) The Underwriters shall have received on the Closing Date opinions of local counsel for the Company (which may include in-house counsel), each dated the Closing Date, to the effect that each Significant Subsidiary has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx in-house counsel for the Company, dated the Closing Date, in substantially the form attached hereto as Exhibit A-4.
(h) The Underwriters shall have received on the Closing Date an opinion of XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the Underwriters, dated the Closing Date, with respect to such matters as the Representatives may reasonably require. XxXxxxxx Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(i) The Underwriters shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Overy Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxx Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank Company described in subsections (ed) and (fe) above shall be rendered to the Underwriters at the request of the Bank Company and shall so state therein.
(hj) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesProspectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP[ ], Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake[ ], Xxxxxxx & Xxxxxxx LLP as Canadian counsel for the Bank, may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP[ ], United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP [ ], as United States counsel for the Bank, may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP[ ], United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx & Xxxxx LLP [ ] may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP[ ], chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the ProspectusesProspectus, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Blakefrom Xxxxxx, Xxxxxxx Xxxx & Xxxxxxx LLP, Canadian special counsel for the BankUnderwriters, an opinion dated the Closing DateDate and addressed to the Underwriters, in substantially with respect to such matters as the form attached hereto as Exhibit A-1. BlakeRepresentatives may reasonably require, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws Company shall have furnished to such counsel such documents as they request for the purpose of Canada applicable thereinenabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Connecticut Light & Power Co)
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject, in to purchase and pay for the discretion Firm ADSs on the Closing Date will be subject to the accuracy of the Representativesrepresentations and warranties of the Company herein (as though made on the Closing Date), to the condition that all representations and warranties and other accuracy of the statements of Company officers made pursuant to the Bank in this Agreement as at provisions hereof, to the date hereof and at, and as of, performance by the Time of Delivery, are true and correct, the condition that the Bank shall have performed all Company of its obligations hereunder theretofore and to be performed, and the following additional conditionsconditions precedent:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution rules and regulations of the Securities or Commission. No stop order suspending the effectiveness of the Registration Statement or of any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or, to the knowledge of the BankCompany or any Underwriter, threatened shall be contemplated by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) Closing Date there shall not have occurred (i) any downgrading, nor shall any notice have been given in writing within the past 60 days 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 debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries by any “nationally recognized statistical rating organization,” as such term is used defined in section Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representativesyour sole judgment, is material and adverse and that makes it, in the judgment of the Representativesyour sole judgment, impracticable to market the Securities ADSs on the terms and in the manner contemplated in the Time of Sale Prospectus; (iii) any change in either U.S. or Argentine or international financial, political or economic conditions or currency exchange rates or foreign exchange controls the effect of which is such as to make it, in your sole judgment, impractical to market or to enforce contracts for the sale of the ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the NYSE, NASDAQ or the XXXX or the Xxxxxxx Abierto Electrónico S.A. (“MAE”), or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange; (vi) any banking moratorium declared by any U.S. federal, New York or Argentine authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States or Argentina or any other country where such securities are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States or Argentina, any declaration of war by Congress or any other national or international calamity or emergency if, in your sole judgment, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the ADSs or to enforce contracts for the sale of the ADSs.
(c) The Underwriters Managers shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect (i) set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect above, (ii) that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and Date, (iii) that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
, (div) The Underwriters shall that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer onlybeen instituted or, to the effect thatbest of their knowledge and after reasonable investigation, other than as set forth are contemplated by the Commission, and (v) that subsequent to the date of the most recent financial statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectuses, to his or her knowledgeProspectus, there is has been no actionmaterial adverse change, proceeding nor any development or investigation pending event involving a prospective material adverse change, in the condition (financial or threatened by otherwise), results of operations, business, properties or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity prospects of the issuance of the Securities or of any action Company and its subsidiaries taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securitiesas a whole. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ed) The Underwriters Managers shall have received on the Closing Date an such opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bankor opinions and customary negative assurance letter, dated the Closing Date, from Xxxxx Xxxx & Xxxxxxxx LLP, special U.S. counsel for the Company, substantially in substantially the form attached hereto of Exhibit A hereto.
(e) The Managers shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions and customary negative assurance letter, dated the Closing Date, with respect to such matters as Exhibit A-1the Managers may require and in the form and substance satisfactory to the Managers; and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. BlakeIn rendering such opinion, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxx Xxxxxxxx LLP may limit their opinion rely as to matters arising under the laws incorporation of the Province Company and all other matters governed by Argentine law upon the opinion of Ontario and the federal laws of Canada applicable thereinforeign counsel for the Underwriters referred to below.
(f) The Underwriters Managers shall have received on the Closing Date an legal opinion in English, substantially in the form of Xxxxx Xxxxx LLP, United States counsel for the BankExhibit B hereto, dated the Closing Date, in substantially of Xxxxx Xxxxx, Grondona, Benites, Xxxxxxx & Xxxxxxxx Xx Xxx(h), Argentine counsel to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of AmericaCompany.
(g) The Underwriters Managers shall have received on the Closing Date an legal opinion of Xxxxx & Overy LLPin English, United States counsel for in form and substance satisfactory to the UnderwritersManagers, dated the Closing Date, of Errecondo, Xxxxxxxx & Funes, Argentine counsel to the Underwriters.
(h) The Managers shall have received the legal opinion, substantially in the form of Exhibit C hereto, dated the Closing Date, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Depositary.
(i) (A) On the date of this Agreement and on the Closing Date, Deloitte & Co. S.A. shall have furnished to the Managers, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountantsManagers, containing statements and information of the type ordinarily customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information for the three-month period ended March 31, 2016 and as of and for the years ended December 31, 2016, 2015 and 2014 contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing DateProspectus.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in to purchase the discretion of the Representatives, Securities shall be subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Final Prospectus and the Final Term Sheets shall have been timely filed with the Reviewing Authority under Commission; no notice objecting to the Shelf Procedures;
(ii) use of the Prospectus Registration Statement or stop order suspending its effectiveness or order preventing the use of the Time of Sale Information shall have been filed with issued and no proceedings for that purpose or pursuant to Section 8A of the Act against the Company or related to the offer and sale of the Securities are pending before or shall have been initiated or threatened by the Commission; and any request of the Commission pursuant to General Instruction II.L for inclusion of Form F-10 under additional information in the Securities ActRegistration Statement, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;Final Prospectus or the Time of Sale Information or otherwise shall have been complied with.
(iiib) no order having (1) Trading generally shall not have been suspended or materially limited on the New York Stock Exchange, (2) trading of any securities of the Company shall not have been materially suspended or limited on the New York Stock Exchange, (3) a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or New York State authorities, and (4) there shall not have occurred a material adverse change in the financial markets, any outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or other calamity or crisis, if the effect of ceasing any such event specified in this clause (4) in the judgment of the Representatives makes it impracticable or suspending inadvisable to proceed with the distribution offer and sale of the Securities or stop the delivery of the Securities on the terms and in the manner contemplated herein.
(c) The representations and warranties of the Company contained herein shall be true and correct in all material respects on and as of the Execution Time and the Closing Date, and the Company shall have performed in all material respects all covenants and agreements contained herein to be performed on their part at or prior to the Execution Time and the Closing Date, as applicable.
(d) The Company shall have furnished to the Underwriters a certificate, dated the Closing Date, of either the Chief Executive Officer or the Chief Financial Officer and the Treasurer satisfactory to the Underwriters stating that: (1) the representations and warranties of the Company contained or incorporated by reference in Section 4 are true and correct in all material respects on and as of the Closing Date and the Company has performed in all material respects all covenants and agreements contained herein to be performed on its part at or prior to such Closing Date; (2) no order suspending the effectiveness of the Registration Statement or any part thereof prohibiting the offer or having the effect sale of preventing or suspending the use of any prospectus relating to the Securities shall have been issued is in effect, and no proceeding proceedings for that such purpose shall have been initiated are pending before or, to the knowledge of the Banksuch officers, threatened by the Reviewing Authority or the Commission; andand (3) since the date of the most recent financial statements included or incorporated by reference in the Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Time of Sale Information and the Final Prospectus.
(ive) all requests for additional information On the date of this Agreement and on the part of Closing Date, the Reviewing Authority or the Commission Underwriters shall have been complied with received a letter addressed to the Representatives and dated such respective dates, in form and substance satisfactory to the Representatives, of Ernst & Young LLP, the independent registered public accounting firm of the Company, containing statements and information of the type ordinarily included in accountants’ reasonable satisfaction“comfort letters” to underwriters with respect to the financial statements and schedules and certain financial information contained in or incorporated by reference in the Time of Sale Information and the Final Prospectus; provided that the letter delivered on such Closing Date shall use a “cut-off” date no more than three business days prior to such Closing Date.
(bf) (1) W. Xxxxxx Xxxxx, Corporate Counsel to the Company shall have furnished to the Underwriters his opinion, addressed to the Representatives and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached as Exhibit A; and (2) Pxxx, Wxxxx, Rifkind, Wxxxxxx & Gxxxxxxx, LLP, counsel for the Company shall have furnished to the Underwriters its opinion, addressed to the Representatives and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached as Exhibit B; provided that insofar as such opinion involves factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and of public officials.
(g) Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, counsel for the Underwriters, shall have furnished to the Underwriters its opinion, addressed to the Representatives and dated the Closing Date, in form and substance satisfactory to the Representatives.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) Closing Date, 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 changean improvement, in the rating accorded any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days On or prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives Company shall have been furnished by to the Bank Representatives such additional further information, certificates and documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to If any of the conditions specified in this Section 5 will be 7 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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 in writing or by telephone or facsimile confirmed in writing. The Bank will furnish documents required to be delivered by this Section 7 shall be delivered at the Representatives conformed copies office of such opinionsCxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, certificatescounsel for the Underwriters, letters and other documents in such number as at Oxx Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000, on the Representatives will reasonably requestClosing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Chubb Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in to purchase the discretion of the Representatives, Securities shall be subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Final Prospectus and the Final Term Sheet shall have been timely filed with the Reviewing Authority under Commission; no notice objecting to the Shelf Procedures;
(ii) use of the Prospectus Registration Statement or stop order suspending its effectiveness or order preventing the use of the Time of Sale Information shall have been filed with issued and no proceedings for that purpose or pursuant to Section 8A of the Act against the Company or related to the offer and sale of the Securities are pending before or shall have been initiated or threatened by the Commission; and any request of the Commission pursuant to General Instruction II.L for inclusion of Form F-10 under additional information in the Securities ActRegistration Statement, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;Final Prospectus or the Time of Sale Information or otherwise shall have been complied with.
(iiib) no order having (1) Trading generally shall not have been suspended or materially limited on the New York Stock Exchange, (2) trading of any securities of the Company shall not have been materially suspended or limited on the New York Stock Exchange, (3) a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or New York State authorities, and (4) there shall not have occurred a material adverse change in the financial markets, any outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or other calamity or crisis, if the effect of ceasing any such event specified in this clause (4) in the judgment of the Representatives makes it impracticable or suspending inadvisable to proceed with the distribution offer and sale of the Securities or stop the delivery of the Securities on the terms and in the manner contemplated herein.
(c) The representations and warranties of the Company contained herein shall be true and correct in all material respects on and as of the Execution Time and the Closing Date, and the Company shall have performed in all material respects all covenants and agreements contained herein to be performed on their part at or prior to the Execution Time and the Closing Date, as applicable.
(d) The Company shall have furnished to the Underwriters a certificate, dated the Closing Date, of either the Chief Executive Officer or the Chief Financial Officer and the Treasurer satisfactory to the Underwriters stating that: (1) the representations and warranties of the Company contained or incorporated by reference in Section 4 are true and correct in all material respects on and as of the Closing Date and the Company has performed in all material respects all covenants and agreements contained herein to be performed on its part at or prior to such Closing Date; (2) no order suspending the effectiveness of the Registration Statement or any part thereof prohibiting the offer or having the effect sale of preventing or suspending the use of any prospectus relating to the Securities shall have been issued is in effect, and no proceeding proceedings for that such purpose shall have been initiated are pending before or, to the knowledge of the Banksuch officers, threatened by the Reviewing Authority or the Commission; andand (3) since the date of the most recent financial statements included or incorporated by reference in the Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Time of Sale Information and the Final Prospectus.
(ive) all requests for additional information On the date of this Agreement and on the part of Closing Date, the Reviewing Authority or the Commission Underwriters shall have been complied with received a letter addressed to the Representatives and dated such respective dates, in form and substance satisfactory to the Representatives, of Ernst & Young LLP, the independent registered public accounting firm of the Company, containing statements and information of the type ordinarily included in accountants’ reasonable satisfaction“comfort letters” to underwriters with respect to the financial statements and schedules and certain financial information contained in or incorporated by reference in the Time of Sale Information and the Final Prospectus; provided that the letter delivered on such Closing Date shall use a “cut-off” date no more than three business days prior to such Closing Date.
(bf) (1) W. Axxxxx Xxxxx, Corporate Counsel to the Company shall have furnished to the Underwriters his opinion, addressed to the Representatives and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached as Exhibit A; and (2) Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx, LLP, counsel for the Company shall have furnished to the Underwriters its opinion, addressed to the Representatives and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached as Exhibit B; provided that insofar as such opinion involves factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and of public officials.
(g) Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, counsel for the Underwriters, shall have furnished to the Underwriters its opinion, addressed to the Representatives and dated the Closing Date, in form and substance satisfactory to the Representatives.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) Closing Date, 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 changean improvement, in the rating accorded any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days On or prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives Company shall have been furnished by to the Bank Representatives such additional further information, certificates and documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to If any of the conditions specified in this Section 5 will be 7 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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 in writing or by telephone or facsimile confirmed in writing. The Bank will furnish documents required to be delivered by this Section 7 shall be delivered at the Representatives conformed copies office of such opinionsCxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, certificatescounsel for the Underwriters, letters and other documents in such number as at Oxx Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000, on the Representatives will reasonably requestClosing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Chubb Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act; 5915781
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement that are not qualified as to materiality or material adverse effect are true and correct in all material respects as of the Closing Date, the representations and warranties of the Company contained in this Agreement that are qualified as to materiality or material adverse effect are true and correct in all respects as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion or legal opinions from Xxxxxxx X. Xxxxxxxx, Esq., Assistant Secretary of BlakeNortheast Utilities, Xxxxxxx & Xxxxxxx LLPSecretary of the Company and the managing corporate and securities attorney within the legal department of Northeast Utilities Service Company, Canadian counsel for to the BankCompany, or other counsel reasonably acceptable to the Underwriters, dated the Closing Date, in substantially to the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.effect that: 5915781
(fi) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLPCompany has been duly formed, United States counsel for the Bank, dated the Closing Date, is validly existing as a New Hampshire corporation in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising good standing under the laws of the State of New York Hampshire, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the federal laws Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the United States of America.
(g) The Underwriters shall extent that the failure to be so qualified or be in good standing would not have received a material adverse effect on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Company; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered regulatory authorities or bodies as are necessary to the Underwriters at the request of the Bank and shall so state therein.conduct its business as currently conducted;
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) this Agreement has been duly authorized, executed and delivered by the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.Company;
(iiii) Prior the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or on similar laws affecting creditors’ rights generally and general principles of equity;
(iv) the Closing Date, the Representatives shall Bonds have been furnished by the Bank such additional documents duly authorized and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinionsexecuted and, certificates, letters and documents referred to when authenticated in this Section 5 will be in compliance accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement only if they are satisfactory in form and substance Agreement, will be entitled to the Representatives benefits and security of the Indenture, equally and ratably with the first mortgage bonds of other series presently secured by the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to counsel applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) (A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Bonds will not contravene any provision of applicable law, rule or regulation or the Articles of Incorporation or By-laws of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries or any of their respective properties that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the Underwritersperformance by the Company of its obligations under this Agreement, the Indenture and the Bonds, except for the NHPUC Order, the MPUC Order and the VPSB Order, such as have been obtained under the Securities Act and the Trust Indenture Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Bonds. The Bank will furnish NHPUC Order, MPUC Order and VPSB Order are in full force and effect and are sufficient to authorize the Representatives conformed copies of such opinions, certificates, letters Company to issue the Bonds and other documents in such number as the Representatives will reasonably request.to
Appears in 1 contract
Samples: Underwriting Agreement (Public Service Co of New Hampshire)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 15c3-1(c)(2)(vi)(F) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Notes shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Notes have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Xxxxxxx X. Xxxxxx, Esq., Assistant General Counsel of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the BankNortheast Utilities Service Company, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts corporation in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of Massachusetts, has the Province of Ontario power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the federal laws Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of Canada applicable therein.
(f) The Underwriters shall its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have received a material adverse effect on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Company; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal laws of the United States of America.regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) this Agreement has been duly authorized, executed and delivered by the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.Company;
(iiii) Prior the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or on similar laws affecting creditors’ rights generally and general principles of equity;
(iv) the Closing Date, the Representatives shall Notes have been furnished by the Bank such additional documents duly authorized and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinionsexecuted and, certificates, letters and documents referred to when authenticated in this Section 5 will be in compliance accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Notes will not contravene any provision of applicable law, rule or regulation or the Restated Articles of Organization or By-Laws of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company that is material to the Company, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, except the DPU Order, such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Notes; and the DPU Order is in full force and effect and is sufficient to authorize the Company to issue the Notes and to perform its obligations under the Notes, the Indenture and this Agreement only if they are satisfactory and is final and not subject to rehearing or appeal;
(vi) the statements (A) in form the Pricing Disclosure Package and substance the Prospectus under the captions “Description of Securities Registered¾Western Massachusetts Electric Company ¾ The WMECO Senior Notes”, “Underwriting” and “Description of the Series F Notes,” (other than under the subcaptions “¾Global Securities” and “¾Certain Notices,” as to which such counsel need express no opinion), (B) in the Representatives Registration Statement under Item 15, (C) in “Item 3 - Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Pricing Disclosure Package and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.Prospectus and
Appears in 1 contract
Samples: Underwriting Agreement (Western Massachusetts Electric Co)
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject, in hereunder as to the discretion of Securities to be delivered at the Representatives, Closing Time shall be subject to the condition that all representations and warranties made by the Company, the Adviser and other statements the Administrator herein are, at and as of the Bank in this Agreement as at the date hereof and atClosing Time, and as of, the Time of Delivery, are true and correct, as if then made, to the condition that due performance by the Bank shall have performed all Company of its obligations hereunder theretofore to be performedhereunder, and to the satisfaction (or waiver by the Representatives in their sole discretion) of the following additional conditions:
(ia) The Canadian Prospectus Registration Statement shall have become effective and shall be available for the sale of all Securities to be issued and sold hereunder. All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Securities hereunder shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case made within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;by Rule 497.
(iiib) no order having the effect of ceasing or suspending the distribution None of the Securities following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement, the Pricing Disclosure Package or the Prospectus relating to or affecting the Securities; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of, or preventing the use of, the Registration Statement, the Pricing Disclosure Package or the Prospectus, or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or any part thereof or order pursuant to Section 8(e) of the 1940 Act having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated orproceedings therefor initiated, or to the knowledge of the BankCompany, threatened by the Reviewing Authority Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Securities for sale in any jurisdiction or the Commissioninitiation or threatening of any proceeding for such purpose; and
(iv) all requests for additional information on the part occurrence of any event that makes any statement made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement, the Pricing Disclosure Package or Prospectus so that, in the case of the Reviewing Authority Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Pricing Disclosure Package or the Commission shall have been complied with Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Representatives’ reasonable satisfactionRegistration Statement would be appropriate.
(bc) Subsequent No Underwriter shall have discovered and disclosed to the execution Company on or prior to the Closing Time that the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxxxx Xxxxxxx LLP, counsel to the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and delivery is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Securities, the Registration Statement, the Pricing Disclosure Package and the Prospectus, and all other legal matters relating to this Agreement and prior the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(e) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall have furnished to the Time Underwriters its written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Time, substantially in the form of Delivery:Exhibit A hereto.
(f) The Company’s general counsel shall have furnished to the Underwriters its written opinion, addressed to the Underwriters and dated the Closing Time, substantially in the form of Exhibit B hereto.
(g) Xxxxxxx LLP, shall have furnished to the Underwriters its written opinion, as Maryland counsel to the Company, addressed to the Underwriters and dated the Closing Time, substantially in the form of Exhibit C hereto.
(h) The Underwriters shall have received from Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Time, with respect to the issuance and sale of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(i) At the time of execution of this Agreement, the Underwriters shall have received from BDO USA, LLP a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, the Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) With respect to the letter of BDO USA, LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Underwriters a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated as of the Closing Time (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Time, (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package and the Prospectus, as of a date not more than three days prior to the Closing Time), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(k) Except as described in the Pricing Disclosure Package or the Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date, there shall not have occurred been any downgrading, nor shall any notice have been given of any intended change in the capital stock or potential downgrading or of any review for a possible change that does not indicate the direction long-term debt of the possible change, in the rating accorded any of the debt securities of the Bank Company or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred subsidiaries or any change, or any development involving a prospective change, in or affecting the condition, financial or otherwise, or in the earnings, net asset value, prospects, business or operations operations, whether or not arising from transactions in the ordinary course of business, of the Bank Company and its subsidiaries, taken considered as a wholeone entity, from that set forth the effect of which, in any such case described in clause (i) or (ii), is, individually or in the Time of Sale Prospectus thataggregate, in the judgment of the Representatives, is so material and adverse and that makes it, in as to make it impracticable or inadvisable to proceed with the judgment offering or the delivery of the Representatives, impracticable to market Securities being delivered on the Securities Closing Time on the terms and in the manner contemplated in the Time of Sale Pricing Disclosure Package and the Prospectus.
(cl) The Underwriters At or prior to the Closing Time, the Company and the Trustee shall have received executed and delivered the Supplemental Indenture.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the NASDAQ or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Underwriters, impracticable or inadvisable to proceed with the offering or delivery of the Securities being delivered on the Closing Date a certificateTime on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus or that, dated in the judgment of the Representatives, would materially and adversely affect the financial markets or the markets for the Securities.
(n) At the Closing Date Time, the Securities shall be rated at least BBB- by Standard & Poor’s Ratings Services and signed at least BBB by an officer Xxxxx Bond Rating Agency, Inc.
(o) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined in Section 3(a)(62) of the BankExchange Act, in his and (ii) no such organization shall have publicly announced that it has under surveillance or her capacity as such officer onlyreview, with possible negative implications, its rating of any of the Company’s debt securities.
(p) The Company shall have furnished or caused to be furnished to the effect set forth in Section 5(a)(iii) Underwriters at the Closing Time certificates of officers of the Company, the Adviser and Section 5(b)(i) above and the Administrator satisfactory to the effect that Underwriters as to the accuracy of the representations and warranties of the Bank contained in this Agreement are true Company, the Adviser and correct the Administrator herein at and as of the Closing Date and that Time, as to the Bank has complied with performance by the Company of all of the agreements and satisfied all of the conditions on its part obligations hereunder to be performed at or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior Time and as to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates other matters as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificatesletters, letters evidence and documents referred to certificates mentioned above or elsewhere in this Section 5 will Agreement shall be deemed to be in compliance with the provisions of this Agreement hereof only if they are satisfactory in form and substance to the Representatives and reasonably satisfactory to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. (a) The obligations of the Partnership to sell the Units to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Units on the Closing Date and, if applicable, at any Option Closing Date, are subject to the condition that prior to and at the Closing Date and the Option Closing Date, as the case may be, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) neither the preliminary prospectus nor the Prospectus and no amendment or supplement thereto shall include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading; and (iv) the Time of Sale Prospectus, and any amendment or supplement thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional further conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgradingClosing Date or Option Closing Date, 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 as the direction of the possible changecase may be, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, properties, management or operations of the Bank and its subsidiariesRegency Entities, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representativesyour judgment, impracticable to market the Securities Units on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date and, if applicable, on the Option Closing Date, a certificatecertificate in form and substance as set forth in Exhibit E, dated the Closing Date or Option Closing Date, as the case may be, and signed by an executive officer of the Bank, in his or her capacity as such officer only, GP LLC to the effect set forth in Section 5(a)(iiiSections 5(a) and Section 5(b)(i(b) above and to the effect that the representations and warranties of the Bank Regency Entities contained in this Agreement are true and correct as of the Closing Date or Option Closing Date, as the case may be, and that the Bank has Regency Entities have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or Option Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securitiesapplicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date and, if applicable, on the Option Closing Date, an opinion of Xxxxx Xxxxx LLP, outside counsel for the Partnership, addressed to the Underwriters, and dated the Closing Date or Option Closing Date, as the case may be, with reproduced copies for each of the other Underwriters and in form and substance as set forth in Exhibit B hereto and as otherwise reasonably satisfactory to Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters. The opinion of Xxxxx Xxxxx LLP described above shall be rendered to the Underwriters at the request of the Partnership and shall so state therein.
(e) The Underwriters shall have received on the Closing Date and, if applicable, on the Option Closing Date, an opinion of BlakeXxxx Xxxxx, Xxxxxxx Chief Legal Officer of GP LLC, addressed to the Underwriters, and dated the Closing Date or Option Closing Date, as the case may be, with reproduced copies for each of the other Underwriters and in form and substance as set forth in Exhibit C hereto and as otherwise reasonably satisfactory to Xxxxxx & Xxxxxxx LLPXxxxxx L.L.P., Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinUnderwriters.
(f) The Underwriters shall have received on the Closing Date and, if applicable, on the Option Closing Date, an opinion of Xxxxx Xxxxx LLPXxxxxx & Xxxxxx L.L.P., United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, addressed to the Underwriters, and dated the Closing Date or Option Closing Date, as the case may be, with reproduced copies for each of the other Underwriters and in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described as set forth in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state thereinExhibit D hereto.
(hg) The Underwriters shall have received, on each of the date hereof and the Closing Date, or any Option Closing Date, as the case may be, a letter dated the date hereof or the Closing Date, or any Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, Underwriters from Ernst & Young KPMG LLP, chartered independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable Prospectus; provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) 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 hereof.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, or any Option Closing Date, as the case may be, a letter dated the date hereof or the Closing Date, or any Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters from PricewaterhouseCoopers, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut off date” not earlier than the date hereof.
(i) Prior The signed Lock Up Agreements referred to in Section 1(z) hereof, each substantially in the form of Exhibit A hereto, between you and each of GP LLC’s Executive officers, non-independent directors, and each holder of the ETE Units, as set forth in Exhibit A-1 hereto, relating to sales and certain other dispositions of Common Units or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Additional Units hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Regency Parties, the Representatives shall have been furnished by due authorization and issuance of the Bank Additional Units to be sold on such additional documents Option Closing Date and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance other matters related to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies issuance of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestAdditional Units.
Appears in 1 contract
Samples: Underwriting Agreement (Regency Energy Partners LP)
Conditions to the Underwriters’ Obligations. The obligations of the Republic to sell the Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been Final Term Sheet (as defined in Section 5(b)) and any other material required to be filed with by the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus Republic shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case Rule 433(d) within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Act; the Final Prospectus Supplement (as defined in accordance Section 5(c)) shall have been filed with Section 6(athe Commission pursuant to Rule 424(b) hereof;
(iii) within the applicable time period prescribed for such filing by the rules and regulations under the Act; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Act shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this the Terms Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Republic or any of the debt Republic’s securities of or securities guaranteed by the Bank Republic or any of its Significant Subsidiaries in the rating outlook for the Republic by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the conditionfinancial, financial economic or otherwise, or in the earnings, business or operations political condition of the Bank and its subsidiaries, taken as a whole, Republic from that set forth in each of the Time Preliminary Prospectus (exclusive of Sale any amendments or supplements thereto subsequent to the Execution Time) and the Final Prospectus (exclusive of any amendment or supplement thereto) that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representativesyour judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Preliminary Prospectus, the Final Term Sheet and the Final Prospectus.
(c) The Underwriters Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer the Secretary of Finance of the Bank, in his or her capacity as such officer onlyRepublic, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i4(b)(i) above and to the effect that the representations and warranties of the Bank Republic contained in this Agreement are true and correct as of the Closing Date and that the Bank Republic has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer official signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion of the Secretary of the Philippine Department of Justice, Philippine counsel to the Republic, dated the Closing Date, in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian United States counsel for to the BankRepublic, dated the Closing Date, in substantially form and substance satisfactory to the Representatives, to the effect set forth in Exhibit C hereto and a letter of United States counsel to the Republic, dated the Closing Date, in form attached hereto as and substance satisfactory to the Representatives, to the effect set forth in Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinD hereto.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States Philippine counsel for the Bank, dated Underwriters in form and substance satisfactory to the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of AmericaRepresentatives.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing DateRepresentatives.
(ih) Prior to or on the Closing Date, the Representatives The Republic shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All provided all other opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Republic of the Philippines)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hxxx & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Connecticut Light & Power Co)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Firm Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The A receipt has been obtained from the Reviewing Authority for the Canadian Prospectus and the Canadian Prospectus as amended or supplemented in relation to the Securities shall have been filed with the Reviewing Authority as soon as practicable after the date hereof and, in any event, within the time period prescribed under Ontario Securities Laws and the Shelf Procedures;
Procedures and (ii) the U.S. Prospectus as amended or supplemented shall have been filed with the Commission pursuant to General Instruction II.L II.L. of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities Canadian Prospectus or U.S. Prospectus as amended or supplemented shall have been issued and no proceeding for that purpose shall have been initiated or, or to the knowledge of the Bank, Company or the Underwriters threatened by the Reviewing Authority or the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ Underwriters' reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the debt Company's securities of or in the Bank or any of its Significant Subsidiaries rating outlook for the Company by any “"nationally recognized statistical rating organization,” " as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving reasonably likely to involve a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as amended or supplemented that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representativesyour judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusProspectus as amended or supplemented.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date as if made on and as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion of Goodmans LLP, Canadian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A.
(e) The Underwriters shall have received on the Closing Date an opinion of BlakeWachtell, Xxxxxxx Lipton, Rosen & Xxxxxxx LLPKatz, Canadian outside U.S. counsel for the BankCompany, dated the Closing DateXxxxing Xxxe, to the effect set forth in substantially Exhibit B. Such opinion shall be rendered to the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under Underwriters at the laws request of the Province of Ontario Company and the federal laws of Canada applicable shall so state therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx Shearman & Sterling LLP, United States U.S. counsel for the BankUnderwriters, dated the Closing Date, Date in substantially form reasonably acceptable to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of AmericaUnderwriters.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Osler, Hoskin & Overy Harcourt LLP, United States Canadian counsel for the Underwriters, dated xxxxx the Closing Date, Date in form and substance reasonably satisfactory acceptable to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state thereinUnderwriters.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered received on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Datean opinion of Shook Lin & Bok, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or special counsel for the Underwriters may reasonably request. All opinionsCompany, certificatesdated the Closing Xxte, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives effect that Four Seasons Hotels and Resorts Asia Pacific Pte Ltd. has been duly incorporated, is validly existing as a corporation under the laws of Singapore, has the corporate power and authority to own its property and to counsel for conduct its business in Singapore, and all of the Underwriters. The Bank will furnish to outstanding shares in the Representatives conformed copies capital of such opinions, certificates, letters Four Seasons Hotels and other documents in such number as the Representatives will reasonably request.Resorts Asia Pacific Pte Ltd. have been validly issued and are fully paid and non-assessable and are held by Four Seasons Hotels (Barbados)
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The respective obligations of the Company, the Investment Adviser and the Administrator, and the several obligations of the Underwriters Underwriters, hereunder are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) Closing Date no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued under the Securities Act and no proceeding for that purpose proceedings with respect thereto shall have been initiated or, to the knowledge of the BankCompany’s knowledge, threatened by the Reviewing Authority or the Commission; and
(iv) all requests for additional information , and any request on the part of the Reviewing Authority or the Commission for additional information shall have been complied with to the Representatives’ reasonable satisfaction.
(b) Subsequent satisfaction of counsel to the execution and delivery Underwriters. The several obligations of this Agreement and prior the Underwriters are subject to the Time of Deliveryfollowing further conditions:
(ia) there 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 debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries by any “nationally recognized statistical rating organization,” as such term is used defined in section Section 3(a)(62) under of the Exchange Act; and.
(iib) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the prospects, earnings, business or operations of the Bank and its subsidiariesCompany, taken as a wholethe Investment Adviser or the Administrator, from that set forth in the Time of Sale Prospectus that, in the judgment of the RepresentativesRepresentative’s reasonable judgment, is material and adverse and that makes it, in the judgment of the RepresentativesRepresentative’s reasonable judgment, impracticable to market the Securities Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the BankCompany, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Underwriters shall also have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Investment Adviser, to the effect that the representations and warranties of the Investment Adviser contained in this Agreement are true and correct as of the Closing Date and that the Investment Adviser has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Underwriters shall also have received on the Closing Date a certificate, dated the Closing Date and signed by an authorized person of the Administrator, to the effect that the representations and warranties of the Administrator contained in this Agreement are true and correct as of the Closing Date and that the Administrator has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received received, on each of the date hereof and the Closing Date Date, a certificate, certificate dated the date hereof or the Closing Date and Date, as the case may be, signed by an officer the Chief Financial Officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect thatthat such officer has reviewed (i) the unaudited estimate of the range of the Company’s NAV per share of common stock as of September 30, other than as set forth 2021 appearing in the Time of Sale Prospectus and the ProspectusesProspectus, and (ii) the financial information described in paragraph (h) of this Section 6 and based on such officer’s familiarity with the Company’s accounting, operations and records systems, such estimates and disclosures were made in good faith and are based on the most recently available records of the Company, and with respect to the unaudited estimate of the range of the Company’s NAV per share of common stock as of September 30, 2021, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her such officer’s knowledge represents a reasonable estimate of the Company’s NAV per share of common stock as to proceedings threatenedof September 30, 2021.
(e) The Underwriters Each of the Investment Adviser, the Administrator and the Company shall have received performed all of its respective obligations to be performed hereunder on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated or prior to the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Xxxxx Xxxxx Dechert LLP, United States counsel for the BankCompany, the Investment Adviser and the Administrator, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an the favorable opinion of Xxxxx & Overy Dxxxx Xxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form Date and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to covering such matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to as the Underwriters at the request of the Bank and shall so state thereinreasonably request.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young KPMG LLP, chartered accountantsindependent registered public accountants (“KPMG”), 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 Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable Prospectus; provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut offcut-off date” not earlier than the date no more than three business days prior to the Closing Datehereof.
(i) Prior to or The Underwriters shall have received, on the Closing Datedate hereof, an “agreed-upon procedures letter” dated the date hereof in form and substance satisfactory to the Underwriters, from KPMG, containing statements and information of the type ordinarily included in such letters with respect to certain financial information contained in the Registration Statement, the Representatives shall have been furnished Time of Sale Prospectus and the Prospectus.
(j) All filings, applications and proceedings taken by the Bank such additional documents Company, the Investment Adviser and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to Administrator in this Section 5 will be in compliance connection with the provisions registration of this Agreement only if they are the Shares under the Securities Act and the applicable Rules and Regulations shall be satisfactory in form and substance to the Representatives Representative and to counsel for the Underwriters.
(k) No action, suit, proceeding, inquiry or investigation shall have been instituted or threatened by the Commission which would adversely affect the Company’s standing as a registered investment company under the Investment Company Act or the standing of the Investment Adviser as a registered investment adviser under the Advisers Act. The Bank will furnish several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the Representatives conformed copies delivery to the Representative on the applicable Option Closing Date of such opinionsdocuments as the Representative may reasonably request with respect to the good standing of the Company, the Investment Adviser and the Administrator, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares, and officers’ certificates to the effect set forth in Sections 6(b) and 6(e), opinions of Dechert LLP and Dxxxx Xxxxxx LLP to the effect set forth in Sections 6(e) and 6(f), respectively and comfort letters of KPMG to the effect set forth in Section 6(g) except that such certificates, opinions and letters shall be dated as of the applicable Option Closing Date and other documents in statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such number as the Representatives will reasonably requestOption Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Eagle Point Income Co Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal or of any review for a possible change that does not indicate the direction of the possible 5532595v5 change, in the rating accorded any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Xxxxxxx X. Xxxxxxxx, Esq., Assistant Secretary of BlakeNortheast Utilities, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for Secretary of the BankCompany and the managing corporate and securities attorney within the legal department of Northeast Utilities Service Company, dated the Closing Date, to the effect that: 5532595v5
(i) the Company has been duly formed, is validly existing as a Massachusetts corporation in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of the Province Commonwealth of Ontario Massachusetts, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) this Agreement has been duly authorized, executed and delivered by the Company;
(iii) the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(iv) the Securities have been duly authorized and executed and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) (A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law, rule or regulation or the Restated Articles of Organization or By-Laws of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company that is material to the Company, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except the DPU Order, such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of Canada the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Securities; and the DPU Order is in full force and effect, is final and not subject to rehearing or appeal, and is sufficient to authorize the Company to issue the Securities and to perform its obligations under the Securities, the Indenture and this Agreement;
(vi) the statements in (A) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Debentures”, “Underwriting” and “Description of 5532595v5 Debt Securities” (other than under the subcaption “—Book Entry System,” as to which such counsel need express no opinion), (B) in the Registration Statement under Item 15, (C) in “Item 3. Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference into the Pricing Disclosure Package and the Prospectus and (D) in “Item 1. Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(vii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company is a party or to which any of the properties of the Company is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company (A) is in compliance with any and all applicable Environmental Laws, (B) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company;
(x) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xi) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any 5532595v5 opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Xxxxxx, Xxxx & Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, each in substantially form and substance satisfactory to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws Underwriters, from Deloitte & Touche LLP, containing statements 5532595v5 and information of the State of New York type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the most recent Preliminary Prospectus, the Pricing Disclosure Package and the federal laws of the United States of AmericaProspectus.
(g) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx & Overy LLPDate, United States counsel for letters, the Underwriters, first dated the date hereof and the second dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young PricewaterhouseCoopers LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as Company contained herein are, at the date hereof hereof, at the Closing Date and atat each Option Closing Date, and as ofif any, the Time of Delivery, are true and correct, the condition that the Bank shall have Company has performed all of its obligations hereunder theretofore required to be performed, performed hereunder prior to the Closing Date and the following additional further conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement hereof and prior to the Time of DeliveryClosing Date and each Option Closing Date, if any, there shall have not have occurred:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the assets, business, financial condition, financial management, operations, earnings or otherwise, or in the earnings, business or operations prospects of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus thatthat it is, in the judgment of the Representatives, is material and adverse and that makes it, in the reasonable judgment of the Representatives, impracticable or inadvisable to market offer or sell the Securities Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(cb) The Underwriters shall have received on the Closing Date and each Option Closing Date, if any, a certificate, dated the Closing Date or such Option Closing Date, as applicable, and signed by an officer the Chief Executive Officer and the Chief Financial Officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiithat (i) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement Company set forth herein are true and correct at and as of if made on the Closing Date and that or such Option Closing Date, as applicable, (ii) the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or such Option Closing Date, as applicable, (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened, and (iv) as to such other matters as the Representatives may reasonably request. The delivery of such certificate shall constitute a representation and warranty of the Company as to the statements made therein.
(dc) The Underwriters shall have received on the Closing Date a certificateand each Option Closing Date, if any:
(i) an opinion of Xxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date and signed by an officer of the Bankor such Option Closing Date, as applicable, in his or her capacity as such officer only, form and substance reasonably satisfactory to counsel for the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.Underwriters;
(eii) The Underwriters shall have received on a negative assurance letter of Xxxxx & Lardner LLP, outside counsel for the Company, dated the Closing Date or such Option Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the Underwriters;
(iii) an opinion and negative assurance letter of Blake, Xxxxxxx Xxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date or such Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state thereinUnderwriters.
(hd) The Underwriters shall have received, on each of the date hereof hereof, the Closing Date and the each Option Closing Date, if any, a letter letter, dated the date hereof hereof, the Closing Date or the Option Closing Date, as the case may beapplicable, in form and substance satisfactory to the Underwriters, from Ernst each of Deloitte & Young Touche LLP and Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP, chartered independent public accountants, addressed to the Underwriters and copied to each member of the Board who signed the Registration Statement at any time, 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 Time of Sale Prospectus and the ProspectusesProspectus.
(e) The Underwriters shall have received, on the date hereof, the Closing Date and each Option Closing Date, if any, a certificate, dated the date hereof, the Closing Date or the Option Closing Date, as amended applicable, of the Chief Financial Officer of the Company with respect to certain financial data contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus, providing “management comfort” with respect to such information, in form and substance satisfactory to the Underwriters.
(f) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(b) hereof, and any issuer free writing prospectus or supplementedother material required to be filed by the Company pursuant to Rule 433 under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act and in accordance with Section 5(b) hereof. If the Company has elected to rely upon Rule 462(b) under the Securities Act, if applicable provided the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern Time, on the date hereof. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or any issuer free writing prospectus shall have been issued, and no proceedings for such purpose shall have been instituted or threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement shall have been received; and all requests for additional information on the part of the Commission shall have been complied with to the satisfaction of the Representatives. No action shall have been taken, and no statute, rule, regulation, injunction, decree or order shall have been enacted, adopted or issued, by any Governmental Authority that would, at the Closing Date or at each Option Closing Date, as applicable, prevent the issuance or sale of the Shares.
(g) The Underwriters shall have received, on or prior to the date hereof, “lock-up” agreements between (i) the letter delivered Representatives, on the date hereof shall use a “cut off” date no more than three business days prior to one hand, and the date hereof directors and officers of the Company, on the other hand, each substantially in the form of Exhibit A hereto, and (ii) the letter delivered Representatives, on the one hand, and the trustee of each of the Company’s Employee Stock Ownership Plans (each, an “ESOP”), on the other hand, each substantially in the form set forth on Exhibit B hereto, relating to sales and certain other dispositions of shares of Common Stock and other securities of the Company, and such lock-up agreements shall be in full force and effect at the Closing Date shall use a “cut off” date no more than three business days prior to the and each Closing Date, if any.
(h) The Shares shall have been approved for listing on the Exchange, subject only to official notice of issuance.
(i) Prior FINRA shall not have raised any objection with respect to the fairness or reasonableness of the terms and arrangements of the underwriting or the transactions contemplated hereby.
(j) On or after the Time of Sale there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Closing DateNew York Stock Exchange, the Representatives shall have been furnished NYSE MKT, LLC or the Nasdaq Global Market; (ii) a suspension or material limitation in trading in the Company’s securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the Bank United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such additional event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(k) The obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on each Option Closing Date of such documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificatesincluding certificates of officers of the Company, letters legal opinions and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form an accountant’s comfort letter, and substance other matters related to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies issuance of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestAdditional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Mayville Engineering Company, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiariessubsidiary, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Blakefrom Xxxxxx, Xxxxxxx Xxxx & Xxxxxxx LLP, Canadian special counsel for the BankUnderwriters, an opinion dated the Closing DateDate and addressed to the Underwriters, in substantially with respect to such matters as the form attached hereto as Exhibit A-1. BlakeRepresentatives may reasonably require, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws Company shall have furnished to such counsel such documents as they request for the purpose of Canada applicable thereinenabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, but excluding a negative assurance statement. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject, in the discretion of the Representatives, hereunder shall be subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder by the rules and in accordance regulations under the Act; the final term sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending Commission within the distribution of the Securities or applicable time periods prescribed for such filings by Rule 433. No stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) all requests for additional information on the part Commission and no notice of objection of the Reviewing Authority Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Commission Act shall have been complied with to received; no stop order suspending or preventing the Representatives’ reasonable satisfactionuse of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.
(b) Subsequent to On or after the execution and delivery of this Agreement Applicable Time and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of to the Company’s debt securities of or the Bank Company’s or any of its Significant Subsidiaries Insurance Subsidiaries’ financial strength or claims paying ability by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined by the Commission for purposes of Rule 436(g)(2) under the Exchange Act; and;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Material Adverse Change that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representatives, it impracticable to market proceed with the public offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Time Pricing Prospectus and the Prospectus; and
(iii) (a) trading generally shall not have been suspended or materially limited on, or by, as the case may be, any of Sale the New York Stock Exchange, the NASDAQ Global Market or any other board or exchange on which the Company’s securities are traded, (b) trading of any securities of the Company shall not have been suspended on any exchange, (c) a material disruption in securities settlement, payment or clearance services in the United States shall not have occurred, (d) any moratorium on commercial banking activities shall not have been declared by Federal or New York State authorities or (e) there shall not have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Representatives’ judgment, is material and adverse and which, singly or together with any other event specified in this clause (e), makes it, in the Representatives’ judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Applicable Time and as of the Time of Delivery as if made as of the Time of Delivery; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects (except to the extent already qualified by materiality) on and as of the date made and as of the Time of Delivery; the Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Time of Delivery.
(d) The Underwriters shall have received on prior to the Closing Date Time of Delivery, a certificate, dated the Closing Date Time of Delivery and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 1(m) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date Time of Delivery and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesDelivery. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on at the Closing Date Time of Delivery an opinion and negative assurance letter of Blake, Xxxxxxx Wxxxxxx Xxxx & Xxxxxxx Gxxxxxxxx LLP, Canadian counsel for the BankCompany, dated the Closing DateTime of Delivery, in substantially form and substance satisfactory to the form attached hereto as Exhibit A-1Representatives. Blake, Xxxxxxx & Xxxxxxx LLP may limit their Such opinion shall be rendered to matters arising under the laws Underwriters at the request of the Province of Ontario Company and the federal laws of Canada applicable shall so state therein.
(f) The Underwriters shall have received on at the Closing Date Time of Delivery an opinion and negative assurance letter of Xxxxx Xxxxx Sidley Austin LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing DateTime of Delivery, in form and substance satisfactory to the Representatives.
(g) On the date of the Prospectus and also at the Time of Delivery, the Underwriters shall have received a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP, independent public accountants, provided that the letter delivered on the Time of Delivery shall use a “cut-off date” not earlier than three business days prior to the date of such letter.
(h) The Company shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Underwriters, and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of received executed copies thereof. The Company shall have executed and delivered the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may beSecurities, in form and substance reasonably satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus Underwriters and the ProspectusesTrustee, as amended or supplemented, if applicable provided that (i) and the letter delivered on the date hereof Trustee shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Datehave received such executed counterparts.
(i) Prior to The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(j) The sale of the Securities shall not be enjoined (temporarily or on permanently) at the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions Time of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestDelivery.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiariessubsidiary, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hxxx & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hetero as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. Insofar as the foregoing opinions relate to matters governed by the law of the State of New Hampshire, such counsel may rely on the opinions of even date therewith of Xxxx Xxxxxx, Esq., Senior Counsel of Eversource Energy Service Company, a service company affiliate of Eversource Energy, and counsel to the Company, and Sulloway & Xxxxxx P.L.L.C., counsel for the Company, each as addressed to such counsel. Insofar as the foregoing opinions relate to matters governed by the law of the State of Maine, such counsel may rely on the opinion of even date therewith of Xxxxxx Xxxx XXX, counsel for the Company, and for matters governed by the law of the State of Vermont, such counsel may rely on the opinion of even date therewith of Xxxx Xxxxx + Xxxxxxx P.C., counsel for the Company, each as addressed to such counsel. Each of the foregoing opinions shall be addressed to or shall allow the Underwriters to rely on such opinion as if they were an addressee thereto. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an opinion of Blakefrom Xxxxxx, Xxxxxxx Xxxx & Xxxxxxx LLP, Canadian special counsel for the BankUnderwriters, an opinion dated the Closing DateDate and addressed to the Underwriters, in substantially with respect to such matters as the form attached hereto as Exhibit A-1. BlakeRepresentatives may reasonably require, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws Company shall have furnished to such counsel such documents as they request for the purpose of Canada applicable thereinenabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Public Service Co of New Hampshire)
Conditions to the Underwriters’ Obligations. The several obligations of Underwriter's obligation to purchase and pay for the Underwriters are subject, in the discretion of the Representatives, Shares as provided herein shall be subject to the condition that all representations and warranties and other statements accuracy, as of the Bank in this Agreement as at the date hereof and atthe Closing Date (as if made at the Closing Date), of the representations and as ofwarranties of the Company herein, to the Time of Delivery, are true and correct, performance by the condition that the Bank shall have performed all Company of its obligations hereunder theretofore and to be performed, and the following additional conditions:
(ia) The Canadian Prospectus Registration Statement shall have been filed with the Reviewing Authority declared effective under the Shelf Procedures;
(ii) Act; the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with as required by Section 6(a1(a) hereof;
(iii) ; and no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated instituted or, to the Underwriter's knowledge or the knowledge of the BankCompany, threatened by the Reviewing Authority Commission, nor has any state securities authority suspended the qualification or registration of the Commission; and
(iv) all requests Shares for offering or sale in any jurisdiction and any request of the Commission for additional information on (to be included in the part of the Reviewing Authority Registration Statement or the Commission Prospectus or otherwise) shall have been complied with to the Representatives’ reasonable satisfactionsatisfaction of the Underwriter and Underwriter's counsel.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt Company's securities of the Bank or any of its Significant Subsidiaries by any “"nationally recognized statistical rating organization,” " as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiariesSubsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representativesyour judgment, impracticable to market the Securities Shares on the terms and in the manner contemplated in the Time Prospectus; and
(iii) there shall not have occurred any event or development relating to or involving the Company or any Subsidiary or any officer or director of Sale Prospectusthe Company which makes any statement made in the Prospectus untrue or which, in the reasonable opinion of the Company and its counsel or the Underwriter and its counsel, requires the making of any addition to or change in the Prospectus in order to state a material fact required by the Securities Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in your reasonable opinion, materially adversely affect the market for the Shares.
(c) The Underwriters shall have received on All filings with the Closing Date a certificate, dated the Closing Date and signed Commission required by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of Rule 424 under the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives Act shall have been furnished made within the applicable time prior prescribed for such filing by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestRule.
Appears in 1 contract
Samples: Underwriting Agreement (U S Restaurant Properties Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Xxxxxxx X. Xxxxxxxx, Esq., Deputy General Counsel and Corporate Secretary of BlakeEversource Energy Service Company, Xxxxxxx & Xxxxxxx LLPa service company affiliate of Eversource Energy, Canadian and counsel for to the BankCompany, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of the Province Commonwealth of Ontario Massachusetts, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated or otherwise formed, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of Canada its jurisdiction of incorporation or formation, has the corporate or limited liability company power, as applicable, and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Securities have been duly authorized and executed and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(vi) (A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law, rule or regulation or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries or any of their respective properties that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Securities;
(vii) the statements in (A) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Notes”, “Underwriting” and “Description of Securities Registered”, (B) in the Registration Statement under Item 15, (C) in “Item 3. Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Pricing Disclosure Package and the Prospectus and (D) in “Item 1. Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and each of the Preliminary Prospectus and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Xxxxxx, Xxxx & Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal or of any review for a possible change that does not indicate the direction of the possible change, in 9384199 the rating accorded any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Xxxxxxx X. Xxxxxxxx, Esq., Deputy General Counsel and Corporate Secretary of BlakeEversource Energy Service Company, Xxxxxxx & Xxxxxxx LLPa service company affiliate of Eversource Energy, Canadian counsel for to the BankCompany, or other counsel reasonably acceptable to the Representatives, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.effect that:
Appears in 1 contract
Samples: Underwriting Agreement (Connecticut Light & Power Co)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesProspectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP[ ], Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake[ ], Xxxxxxx & Xxxxxxx LLP as Canadian counsel for the Bank, may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP[ ], United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP [ ], as United States counsel for the Bank, may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP[ ], United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx & Xxxxx LLP [ ] may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP[ ], chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the ProspectusesProspectus, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Xxxxxxx X. Xxxxxxxx, Esq., Assistant Secretary of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the BankCompany and the managing corporate and securities attorney within the legal department of Northeast Utilities Service Company, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of the Province Commonwealth of Ontario Massachusetts, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated or otherwise formed, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of Canada its jurisdiction of incorporation or formation, has the corporate or limited liability company power, as applicable, and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Securities have been duly authorized and executed and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(vi) (A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law, rule or regulation or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Securities;
(vii) the statements in (A) the Pricing Disclosure Package and the Prospectus under the captions “Description of New Notes”, “Underwriting” and “Description of Securities Registered” (other than under the subcaption “—Book Entry; Delivery and Form; Global Securities,” as to which such counsel need express no opinion), (B) in the Registration Statement under Item 15, (C) in “Item 3. Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference into the Pricing Disclosure Package and the Prospectus and (D) in “Item 1. Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct its business and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Xxxxxx, Xxxx & Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gxxx LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hall & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject, in the discretion of the Representatives, hereunder shall be subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or No stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) all requests for additional information on the part Commission and no notice of objection of the Reviewing Authority Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Commission Act shall have been complied with to received; no stop order suspending or preventing the Representatives’ reasonable satisfactionuse of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.
(b) Subsequent to On or after the execution and delivery of this Agreement Applicable Time and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is used defined in section Section 3(a)(62) under of the Exchange Act; and;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Material Adverse Change that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representatives, it impracticable to market proceed with the public offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Time Pricing Prospectus and the Prospectus; and
(iii) (a) trading generally shall not have been suspended or materially limited on, or by, as the case may be, any of Sale the New York Stock Exchange, the NASDAQ Global Market or any other board or exchange on which the Company’s securities are traded, (b) trading of any securities of the Company shall not have been suspended on any exchange, (c) a material disruption in securities settlement, payment or clearance services in the United States shall not have occurred, (d) any moratorium on commercial banking activities shall not have been declared by Federal or New York State authorities or (e) there shall not have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Representatives’ judgment, is material and adverse and which, singly or together with any other event specified in this clause (e), makes it, in the Representatives’ judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Applicable Time and as of the Time of Delivery as if made as of the Time of Delivery; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects (except to the extent already qualified by materiality) on and as of the date made and as of the Time of Delivery; the Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the applicable Time of Delivery.
(d) The Underwriters shall have received on prior to the Closing Date Time of Delivery, a certificate, dated the Closing Date Time of Delivery and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 1(m) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date Time of Delivery and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesDelivery. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on at the Closing Date Time of Delivery an opinion and negative assurance letter of Blake, Xxxxxxx Wxxxxxx Xxxx & Xxxxxxx Gxxxxxxxx LLP, Canadian counsel for the BankCompany, dated the Closing Date, Time of Delivery in substantially form and substance satisfactory to the form attached hereto as Exhibit A-1Representatives. Blake, Xxxxxxx & Xxxxxxx LLP may limit their Such opinion shall be rendered to matters arising under the laws Underwriters at the request of the Province of Ontario Company and the federal laws of Canada applicable shall so state therein.
(f) The Underwriters shall have received on at the Closing Date Time of Delivery an opinion and negative assurance letter of Xxxxx Xxxxx Lxxxxx & Wxxxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing DateTime of Delivery, in form and substance satisfactory to the Representatives.
(g) On the date of the Prospectus and also at the Time of Delivery, the Underwriters shall have received a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP, independent public accountants, provided that the letter delivered on the Time of Delivery shall use a “cut-off date” not earlier than three business days prior to the date of such letter.
(h) The Company shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Underwriters, and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Datereceived executed copies thereof.
(i) Prior to The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(j) The sale of the Securities shall not be enjoined (temporarily or on permanently) at the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions Time of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestDelivery.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Act and in accordance with Section 6(a7(a) hereof;
(iii; the final term sheet contemplated by Section 7(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ your reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded of any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any changebeen, since the date of this Agreement or any development involving a prospective change, since the respective dates as of which information is given in the conditionPricing Prospectus and Prospectus, any material adverse change in the financial or otherwise, condition or in the earnings, business or operations earnings of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date Date, a certificate, dated as of the date of the Closing Date and signed by an the chief executive officer or the chief financial officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii6(b)(i) and Section 5(b)(i) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that (ii) the Bank Company 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 hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion or opinions and a negative assurances letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the date of the Closing Date, in the form previously agreed.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian the Company’s general counsel for the Bankor any associate general counsel, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpreviously agreed.
(f) The Underwriters shall have received on the Closing Date Date, an opinion of Xxxxx Xxxxx Xxxxxxxx & Sterling LLP, United States counsel for the BankUnderwriters, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of Americapreviously agreed.
(g) The Underwriters and the board of directors of the Company shall have received on the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also on the Closing Date an opinion of Xxxxx & Overy LLPDate, United States counsel for the Underwritersa letter, dated the Closing Daterespective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Amgen Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) the Prospectus shall have been timely filed with the Commission in accordance with Section 6(a). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with;
(ii) 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 the Company or any of the debt securities of the Bank or any of its Significant Subsidiaries Company by any “nationally recognized statistical rating organization,” as such term is used defined in section Section 3(a)(62) under of the Exchange ActAct or any such organization shall have publically announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
(iii) the Pricing Disclosure Package and the Prospectus shall not contain an untrue statement of fact which in the opinion of the Underwriters is material, or omit a fact which in the opinion of the Underwriters is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iiiv) except as contemplated in the Pricing Disclosure Package and the Prospectus (a) neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, neither LORD nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business and (b) there shall not have occurred been any change, or any development involving on a prospective changeconsolidated basis, in the conditioncapital stock, financial short-term debt or otherwise, or in the earnings, business or operations long-term debt of the Bank Company and its subsidiaries or, to the knowledge of the Company, LORD and its subsidiaries, or any change in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries (taken as a whole) and, from that set forth in to the Time knowledge of Sale Prospectus the Company, LORD and its subsidiaries (taken as a whole), that, with respect to each of clauses (a) and (b) of this Section 5(a)(iv), in the judgment of the Representatives, is material so materially adverse with respect to the Company and adverse and that makes itits subsidiaries (taken as a whole), in the judgment of the Representatives, as to make it impracticable or inadvisable to market offer or deliver the Securities on the terms and in the manner contemplated in by the Time of Sale Pricing Disclosure Package and the Prospectus.
(cb) The Underwriters Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an the principal financial or accounting officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii5(a)(ii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) The Underwriters Representatives shall have received on the Closing Date an opinion and negative assurance letter of Cravath, Swaine & Xxxxx LLP, outside counsel for the Company, dated the Closing Date, substantially in the forms attached hereto as Exhibit A. Such opinion shall be rendered to the Representatives at the request of the Company and shall so state therein.
(d) The Representatives shall have received on the Closing Date an opinion of Blakethe General Counsel of the Company, Xxxxxxx & Xxxxxxx LLP, Canadian or other Company counsel for acceptable to the BankRepresentatives, dated the Closing Date, substantially in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.B.
(fe) The Underwriters Representatives shall have received on the Closing Date an opinion of Xxxxx Xxxxx Weil, Gotshal & Xxxxxx, LLP, United States counsel for the BankRepresentatives, dated the Closing Date, in substantially with respect to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws issuance and sale of the State of New York Securities, the Indenture, the Pricing Disclosure Package and the federal laws of Prospectus and other related matters as the United States of AmericaRepresentatives shall reasonably request.
(gf) The Underwriters Representatives shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing DateDate a letter, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, confirming that they are an independent public accounting firm with respect to the Company and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable Prospectus; provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut offcut-off date” date no not more than three business days prior to the Closing Date.
(ig) Prior to or on The Representatives shall have received certificates dated, respectively, the date hereof and the Closing Date, the Representatives shall have been furnished signed by the Bank such additional documents and certificates chief financial officer of the Company, substantially in the form attached hereto as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.Annex A.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements on the part of the Bank each PetIQ Party contained in this Agreement as at are, on the date hereof hereof, on the Closing Date and aton the Option Closing Date, and as ofif any, the Time of Delivery, are true and correct, the condition that the Bank shall have each PetIQ Party has performed all of its their respective obligations hereunder theretofore required to be performed, performed prior to the Closing Date and the following additional further conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgradingClosing Date and the Option Closing Date, 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 debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the conditionassets, business, condition (financial or otherwise), management operations, earnings or in the earnings, business or operations prospects of the Bank PetIQ Parties and its their subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the RepresentativesXxxxxxxxx’x judgment, impracticable or inadvisable to market offer or sell the Securities Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(cb) The Underwriters shall have received on the Closing Date and the Option Closing Date, if any, a certificate, dated the Closing Date or such Option Closing Date, as the case may be, and signed by an officer the Chief Executive Officer and Chief Financial Officer of each PetIQ Party, which shall be delivered on behalf of each PetIQ Party and not the Bank, signatories in his or her capacity as such officer onlytheir individual capacities, to the effect set forth in Section 5(a)(iiithat (i) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank such PetIQ Party contained in this Agreement are true and correct as of the Closing Date and or the Option Closing Date, as the case may be; (ii) that the Bank such PetIQ Party has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or such Option Closing Date, as the case may be; and (iii) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened, and as to such other matters as Jefferies may reasonably request. The delivery of the certificate provided for in this Section 6(b) shall constitute a representation and warranty of each PetIQ Party as to the statements made in such certificate.
(c) [RESERVED]
(d) The Underwriters shall have received on the Closing Date a certificateand the Option Closing Date, if any, an opinion of Winston & Xxxxxx LLP, outside counsel for the PetIQ Parties, dated the Closing Date and signed by an officer of or the BankOption Closing Date, in his or her capacity as such officer onlythe case may be, to the effect that, other than as set forth in the Time Exhibit A hereto. In rendering such opinion, Winston & Xxxxxx LLP may rely as to matters of Sale Prospectus and the Prospectusesfact (but not as to legal conclusions), to his or her knowledgethe extent they deem proper, there is no action, proceeding or investigation pending or threatened by or against the Bank or any on certificates of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity responsible officers of the issuance PetIQ Parties and their subsidiaries and of public officials. The opinion of Winston & Xxxxxx LLP shall be rendered to the Underwriters at the request of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing PetIQ Parties and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatenedshall so state therein.
(e) The Underwriters shall have received on the Closing Date and the Option Closing Date, if any, an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian the general counsel for of the BankCompany, dated the Closing Date or the Option Closing Date, as the case may be, to the effect set forth in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinB hereto.
(f) The Underwriters shall have received on the Closing Date and the Option Closing Date, if any, an opinion of Xxxxx Xxxxx Xxxxxx & Xxxxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date or such Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativesUnderwriters. Xxxxx In rendering such opinion, Xxxxxx & Xxxxx Xxxxxxx LLP may limit their opinion rely as to matters arising under of fact (but not as to legal conclusions), to the laws extent they deem proper, on certificates of responsible officers of the State PetIQ Parties and their subsidiaries and of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state thereinpublic officials.
(hg) The Underwriters shall have received, on each of the date hereof hereof, the Closing Date and the Option Closing Date, if any, a letter dated the date hereof hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young KPMG LLP, chartered independent public accountants, addressed to the Underwriters and copied to the Company’s board of directors, 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 Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable Prospectus; provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date and the Option Closing Date, as the case may be, shall use a “cut offcut-off date” date no more not earlier than three business days prior to the delivery thereof.
(h) On each of the date hereof, the Closing Date and the Option Closing Date, if any, each PetIQ Party shall have furnished to the Underwriters a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer, on behalf of each PetIQ Party and not the signatories in their individual capacities, with respect to certain financial data contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus, providing factual support with respect to such information, in form and substance satisfactory to the Underwriters.
(i) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 7(b) hereof, and any issuer free writing prospectus or other material required to be filed by the Company pursuant to Rule 433 under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act and in accordance with Section 7(b) hereof. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus shall have been issued, and no proceedings for such purpose shall have been instituted or threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement shall have been received; and all requests for additional information on the part of the Commission shall have been complied with to Xxxxxxxxx’x satisfaction. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Option Closing Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction, decree or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Option Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(j) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between Jefferies and certain stockholders, officers and directors of the PetIQ Parties identified on Schedule III hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to Jefferies on or before the date hereof, shall be in full force and effect on the Closing Date.
(ik) Prior to or on the Closing Date, the Representatives The Shares shall have been furnished by approved for listing on the Bank such additional documents Exchange, subject only to official notice of issuance.
(l) 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.
(m) The Transactions shall have been consummated as described in the Registration Statement, the Time of Sale Prospectus and certificates as the Representatives or counsel for Prospectus. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to Jefferies on the applicable Option Closing Date of such documents as Jefferies may reasonably request. All opinions, certificatesincluding certificates of officers of the PetIQ Parties, letters legal opinions and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form an accountant’s comfort letter, and substance other matters related to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies issuance of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestAdditional Shares.
Appears in 1 contract
Samples: Underwriting Agreement (PetIQ, Inc.)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gxxx LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hall & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject, in the discretion of the RepresentativesUnderwriter, to the condition that all representations and warranties and other statements of the Bank in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
Procedures and (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.K. of Form F-10 F-9 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ Underwriter’s reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the RepresentativesUnderwriter, is material and adverse and that makes it, in the judgment of the RepresentativesUnderwriter, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her their capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesCanadian Prospectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters Underwriter shall have received, on each of the date hereof and the Closing Datehereof, a letter previously delivered in connection with a recent senior notes offering by the Bank dated the date hereof or the Closing DateMarch 22, as the case may be, in form and substance satisfactory to the Underwriters, 2011 from Ernst & Young KPMG LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in of the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing DateBank.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject, in the discretion of the Representatives, hereunder shall be subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or No stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) all requests for additional information on the part Commission and no notice of objection of the Reviewing Authority Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Commission Act shall have been complied with to received; no stop order suspending or preventing the Representatives’ reasonable satisfactionuse of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.
(b) Subsequent to On or after the execution and delivery of this Agreement Applicable Time and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is used defined in section Section 3(a)(62) under of the Exchange Act; and;
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Material Adverse Change that, in the judgment of the Representativesyour judgment, is material and adverse and that makes it, in the judgment of the Representatives, it impracticable to market proceed with the public offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Time Pricing Prospectus and the Prospectus; and
(iii) (a) trading generally shall not have been suspended or materially limited on, or by, as the case may be, any of Sale the New York Stock Exchange, the NASDAQ Global Market or any other board or exchange on which the Company’s securities are traded, (b) trading of any securities of the Company shall not have been suspended on any exchange, (c) a material disruption in securities settlement, payment or clearance services in the United States shall not have occurred, (d) any moratorium on commercial banking activities shall not have been declared by Federal or New York State authorities or (e) there shall not have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Representatives’ judgment, is material and adverse and which, singly or together with any other event specified in this clause (e), makes it, in the Representatives’ judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Applicable Time and as of the Time of Delivery as if made as of the Time of Delivery; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects (except to the extent already qualified by materiality) on and as of the date made and as of the Time of Delivery; the Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Time of Delivery.
(d) The Underwriters shall have received on prior to the Closing Date Time of Delivery, a certificate, dated the Closing Date Time of Delivery and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 1(m) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date Time of Delivery and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesDelivery. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on at the Closing Date Time of Delivery (i) an opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, dated the Time of Delivery and (ii) an opinion of BlakeXxxx X. Xxxxxx, Xxxxxxx & Xxxxxxx LLP, Canadian corporate counsel for of the BankCompany, dated the Closing DateTime of Delivery, in substantially each case, in form and substance satisfactory to the form attached hereto as Exhibit A-1Representatives. Blake, Xxxxxxx & Xxxxxxx LLP may limit their Such opinion shall be rendered to matters arising under the laws Underwriters at the request of the Province of Ontario Company and the federal laws of Canada applicable shall so state therein.
(f) The Underwriters shall have received on at the Closing Date Time of Delivery an opinion and negative assurance letter of Xxxxx Xxxxx Xxxxxx & Xxxxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing DateTime of Delivery, in form and substance satisfactory to the Representatives.
(g) On the date of the Prospectus and also at the Time of Delivery, the Underwriters shall have received a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP, independent public accountants (the execution copy of the letter delivered on the date of the Prospectus is attached as Annex I(a) hereto and a form of letter to be delivered as of the Time of Delivery is attached as Annex I(b) hereto), provided that the letter delivered on the Time of Delivery shall use a “cut-off date” not earlier than three business days prior to the date of such letter.
(h) The Company shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Underwriters, and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Datereceived executed copies thereof.
(i) Prior to The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(j) The sale of the Securities shall not be enjoined (temporarily or on permanently) at the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions Time of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestDelivery.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations obligation of the Underwriters are subject, in Company to sell the discretion Securities to the Underwriter and the obligation of the Representatives, Underwriter to purchase and pay for the Securities on the Closing Date are subject to the condition that all representations and warranties and other statements the accuracy, when made as of the Bank in this Agreement as at the date hereof and aton the Closing Date, of the representations and as ofwarranties of the company contained herein, to the Time of Delivery, are true and correct, performance by the condition that the Bank shall have performed all Company of its obligations hereunder theretofore and to be performed, and the following additional further conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or No stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of thereof, preventing or suspending the use of any prospectus relating to Base Prospectus, any Preliminary Prospectus, the Securities Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceeding proceedings for that purpose or pursuant to Section 9A under the Securities Act shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) , and all requests for additional information on the part of the Reviewing Authority Commission (to be included or incorporated by reference in the Registration Statement or the Commission Prospectus or otherwise) shall have been complied with to the Representatives’ reasonable satisfactionsatisfaction of the Underwriter; each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 6(a).
(b) Subsequent The Underwriter shall not have discovered and disclosed to the execution and delivery of this Agreement and Company on or prior to the Time Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of Deliverya fact which, in the opinion of counsel for the Underwriter, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.
(c) On the Closing Date the Underwriters shall have received a written certificate executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, dated as of the Closing Date, stating that:
(i) there shall not such officers have occurred carefully examined the Registration Statement, the General Disclosure Package, any downgradingPermitted Free Writing Prospectus and the Prospectus and, 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 in their opinion, the direction Registration Statement and each amendment thereto, at the Applicable Time and as of the possible changedate of this Agreement and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the General Disclosure Package, as of the Applicable Time and as of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the Closing Date, and the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the rating accorded any light of the debt securities circumstances in which they were made, not misleading;
(ii) to the best of their knowledge after reasonable investigation, as of the Bank Closing Date, the representations and warranties of the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and
(iii) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any Material Adverse Change.
(d) Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any of its Significant Subsidiaries subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any “nationally recognized statistical rating organization,” labor dispute or court or governmental action, order or decree, otherwise than as such term is used set forth in section 3(a)(62) under the Exchange Act; and
General Disclosure Package, and (ii) there shall not have occurred been any change in the share capital or long-term debt of the Company nor any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the conditionbusiness, general affairs, management, financial position, shareholders’ equity or otherwise, or in the earnings, business or results of operations of the Bank Company and its subsidiaries, taken otherwise than as a whole, from that set forth in the Time General Disclosure Package, the effect of Sale Prospectus thatwhich, in any such case described in clause (i) or (ii) of this paragraph (d), is, in the judgment of the RepresentativesUnderwriter, is so material and adverse and that makes it, in as to make it impracticable or inadvisable to proceed with the judgment sale or delivery of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatenedGeneral Disclosure Package.
(e) No action shall have been threatened or taken by any party and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent or attempt to prevent, or claim damages as a result of, the issuance or sale of the Securities or materially and adversely affect the business or operations of the Company or its subsidiaries; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Securities or materially and adversely affect the business or operations of the Company or its subsidiaries.
(f) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s corporate credit rating or the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as that term is defined by the Commission 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 (other than an announcement with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(g) The Underwriters Underwriter shall have received on the Closing Date an opinion of BlakeFulbright & Xxxxxxxx L.L.P., Xxxxxxx & Xxxxxxx LLP, Canadian outside counsel for the BankCompany, dated as of the Closing Date, to the effect set forth in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinA-1 hereto.
(fh) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLPXxxxxx and Calder, United States Cayman Islands counsel for the BankCompany, dated as of the Closing Date, to the effect set forth in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of AmericaA-2 hereto.
(gi) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxx Xxxxxx & Overy LLPXxxxxx L.L.P., United States counsel for the UnderwritersUnderwriter, dated as of the Closing Date, in form and substance with respect to such matters as the Underwriter may reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York require, and the federal laws of the United States of America. The opinions of Company shall have furnished to such counsel for the Bank described in subsections (e) and (f) above shall be rendered such documents as they request to the Underwriters at the request of the Bank and shall so state thereinenable them to pass upon such matters.
(hi) The Underwriters At the time of execution of this Agreement, the Underwriter shall have received, on each of the date hereof and the Closing Date, received from UHY LLP a letter dated the date hereof or the Closing Date, as the case may beletter, in form and substance satisfactory to the UnderwritersUnderwriter, from Ernst & Young LLP, chartered accountants, containing statements addressed to the Underwriter and information dated the date hereof (i) confirming that they are independent public accountants within the meaning of the type Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with registered offerings.
(ii) With respect to the letter of UHY LLP referred to in Section 5(j)(i) and delivered to the Underwriter concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Underwriter a letter (the “bring-down letter”) of such accountants, addressed to the Underwriter and dated as of the Closing Date (i) confirming that they are independent public accountants with the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial statements information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(k) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Underwriter and the certain shareholders, officers and directors of the Company listed on Schedule III hereto relating to sales and certain financial information contained in other dispositions of Ordinary Shares or certain other securities, delivered to the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended Underwriter on or supplemented, if applicable provided that (i) the letter delivered on before the date hereof hereof, shall use a “cut off” date no more than three business days prior to the date hereof be in full force and (ii) the letter delivered effect on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(il) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and the General Disclosure Package, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(m) The NYSE MKT shall have approved the Underlying Securities for listing, subject only to official notice of issuance.
(n) The Credit Agreement shall have been amended to permit the issuance of the Securities, and the applicable amendment shall be in effect on the Closing Date.
(o) Prior to or on the Closing Date, the Representatives Company shall have been furnished by to the Bank Underwriter such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All further information, opinions, certificates, letters or documents as the Underwriter shall have reasonably requested. All opinions, letters, evidence and documents referred to certificates mentioned above or elsewhere in this Section 5 will Agreement shall be deemed to be in compliance with the provisions of this Agreement hereof only if they are satisfactory in form and substance satisfactory to the Representatives Underwriter and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestUnderwriter.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 436(g)(2) under the Exchange Securities Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b); the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i6(a)(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Notes shall be rated at least BBB- by S&P, Baa2 by Xxxxx’x and BBB by Fitch, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each such rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Notes have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion or opinions from Xxxxxxx X. Xxxxxx, Esq., Assistant General Counsel of BlakeNortheast Utilities Service Company, Xxxxxxx & Xxxxxxx LLPcounsel to the Company, Canadian or other counsel for reasonably acceptable to the BankUnderwriters, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially good standing under the form attached hereto laws of Massachusetts, has the power and authority to own its property and to conduct its business as Exhibit A-1. Blakedescribed in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, Xxxxxxx & Xxxxxxx LLP may limit their opinion except to matters arising the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the Province jurisdiction of Ontario its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each such subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture (A) has been duly qualified under the Trust Indenture Act and (B) has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Notes 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 in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(A) the execution and delivery by the Company of, and the federal performance by the Company of its obligations under, this Agreement, the Indenture and the Notes will not contravene any provision of applicable law or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, except such as have been obtained from the Commission under the Securities Act and such as may be required by the securities or Blue Sky laws of Canada the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Notes;
(vii) the statements (A) in the Pricing Disclosure Package and the Prospectus under the captions “Description of Securities Registered – Northeast Utilities – Senior Notes,” “Underwriting” and “Description of the Notes” (other than under the subcaptions “— Global Securities” and “— Certain Notices”, as to which counsel need express no opinion), (B) in the Registration Statement under Item 15, (C) in “Item 3 - Legal Proceedings” of the Company’s most recent annual report on Form 10-K incorporated by reference in the Pricing Disclosure Package and the Prospectus and (D) in “Item 1 - Legal Proceedings” of Part II of the Company’s quarterly reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document if filed pursuant to the Exchange Act and incorporated by reference in the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial or statistical data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, and (B) is of the opinion that the Registration Statement, on the Effective Date, and Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) (except for financial statements, schedules and other financial or statistical data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations;
(xiii) Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial or statistical data contained or incorporated by reference in the Registration Statement, Pricing Disclosure Package or Prospectus, and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Pricing Disclosure Package and the Prospectus and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. Insofar as Xx. Xxxxxx’x opinion relates to matters governed by the law of the Commonwealth of Massachusetts, he may rely on the opinion of even date therewith of Xxxxxxx Xxxxxxxxx, senior counsel for Northeast Utilities Service Company, as addressed to him. The foregoing opinion shall be addressed to or shall allow the Underwriters to rely on such opinion as if they were an addressee thereto. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Offered Shares to the Underwriters and the several obligations of the Underwriters are subjectto purchase and pay for the Offered Shares on the Closing Date are, in the discretion of the Representatives, addition to the condition that all representations and warranties and other statements of the Bank conditions described elsewhere in this Agreement as at the date hereof and atAgreement, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore subject to be performed, and the following additional further conditions:
(ia) The Canadian Prospectus Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement shall have been filed with the Reviewing Authority issued under the Shelf Procedures;
(ii) the Prospectus Securities Act and no proceedings for that purpose shall have been filed with instituted or shall be pending or, to the Commission pursuant to General Instruction II.L knowledge of Form F-10 under the Securities ActUnderwriters or the knowledge of the Company, in each case within shall be contemplated by the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) Commission. In addition, no order having the effect of ceasing or suspending the distribution of the Securities Offered Shares or stop order suspending the effectiveness trading in the Common Shares or any other securities of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities Company shall have been issued by any securities commission, securities regulatory authority or stock exchange in Canada or the United States and no proceeding proceedings for that purpose shall have been initiated instituted or pending or, to the knowledge of the BankCompany, threatened shall be contemplated by the Reviewing Authority any securities commission, securities regulatory authority or stock exchange in Canada or the CommissionUnited States; and
(iv) all requests for additional information and any request on the part of the Reviewing Authority any Canadian Securities Commission or the Commission for additional information shall have been complied with to the Representatives’ reasonable satisfactionwith.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) Closing Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time Canadian Preliminary Prospectus and the U.S. Preliminary Prospectus (exclusive of Sale Prospectus any amendments or supplements thereto subsequent to the date of this Agreement) that, in the reasonable judgment of the Representatives, Underwriters:
(i) is material and adverse and that and;
(ii) makes it, in the reasonable judgment of the RepresentativesUnderwriters, impracticable to market the Securities Offered Shares on the terms and in the manner contemplated in the Time of Sale Canadian Prospectus or the U.S. Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the BankCompany, in his or her capacity as such officer onlysuch, to the effect set forth in Section 5(a)(iii) and Section 5(b)(iclause 5(b) above (without reference to the Underwriters' judgment) and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the respective dates of the Canadian Preliminary Prospectus and the Canadian Final Prospectus an opinion of Quebec counsel to the Company, dated the respective dates of the Canadian Preliminary Prospectus and the Canadian Final Prospectus, to the effect that the French language versions of each of the Canadian Preliminary Prospectus and the Canadian Final Prospectus (including all documents incorporated by reference therein), other than certain financial information (the "Financial Information") contained or incorporated by reference therein, are in all material respects complete and proper translations of the English language versions of each of the Canadian Preliminary Prospectus and the Canadian Final Prospectus (including all documents incorporated by reference therein).
(e) The Underwriters shall have received on the Closing Date respective dates of the Canadian Preliminary Prospectus and the Canadian Final Prospectus an opinion of BlakeKPMG LLP dated on the respective dates of the Canadian Preliminary Prospectus and the Canadian Final Prospectus, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for to the Bank, dated effect that the Closing DateFrench language version of the Financial Information is, in substantially the form attached hereto as Exhibit A-1. Blakeall material respects, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws a complete and proper translation of the Province of Ontario and the federal laws of Canada applicable thereinEnglish language version thereof.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States Quebec counsel for to the BankCompany, dated the Closing Date, in substantially to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under effect that the laws of the State Province of New York and Quebec relating to the federal laws use of the United States French language (other than verbal communications) will have been complied with in connection with the sale of Americathe Offered Shares to purchasers in the Province of Quebec if such purchasers have received a copy of the Canadian Prospectus and forms of order and confirmation in the French language (on the assumption that the Canadian Prospectus together with the forms of order and confirmation constitute the entire contract for the purchase of such Offered Shares), provided that the Canadian Prospectus and forms of order and confirmation in the English language may be delivered without delivery of the French language versions thereof to purchasers in the Province of Quebec who have expressly requested, in writing, that such English language documents be delivered to them.
(g) The Underwriters shall have received on the Closing Date an opinion of each of Xxxx Prince Xxxxx and Thorsteinssons, each dated the Closing Date, substantially in the form of Schedule II and Schedule III hereto, respectively. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the laws of the Provinces of British Columbia and the federal laws of Canada applicable therein, upon opinions of local counsel, who shall be counsel satisfactory to counsel for the Underwriters, in which case the opinion shall state that they believe that they and the Underwriters are justified in relying upon such opinion. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials, provided that such certificates have been delivered to the Underwriters. Such opinion shall not state that it is to be governed or qualified by, or that is otherwise subject to, any treatise, written policy or other document relating to legal opinions. The opinion letter referred to in this subparagraph (g) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(h) The Underwriters shall have received on the Closing Date an opinion of, and a letter from, Cravath, Swaine & Overy Xxxxx LLP, special United States counsel for the Company, dated the Closing Date, substantially in the forms attached as Schedule IV hereto. The opinion and letter referred to in this subparagraph (h) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(i) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of local counsel, who shall be counsel satisfactory to counsel for the Underwriters, with respect to, among other things, the incorporation, authorized and issued capital and qualification to carry on business in respect of Creo Americas, Inc., Creo IL Ltd., Creo Europe EMEA S.A., Creo Asia Pacific Limited and Creo Japan Inc., all in form and substance satisfactory to the Underwriters.
(j) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(k) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Shearman & Sterling LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state thereinUnderwriters.
(hl) The Underwriters shall have received, on each of the date hereof of the Canadian Final Prospectus and the Closing Date, a letter dated the date hereof of the Canadian Final Prospectus or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young KPMG LLP, independent chartered accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial and statistical information contained included or incorporated by reference in the Registration Statement, the Time of Sale Canadian Prospectus and the Prospectuses, as amended or supplemented, if applicable U.S. Prospectus; provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more "cut-off date" not earlier than three business two days prior to the Closing Date.
(im) Prior The Offered Shares shall have been approved for inclusion in the Nasdaq National Market, subject only to official notice of issuance thereof, and shall have been approved for listing by the Toronto Stock Exchange, subject only to official notice of issuance thereof and customary post-closing filing requirements.
(n) On or on before the date of the Canadian Final Prospectus and the U.S. Final Prospectus, the Company and Underwriters shall have received all necessary approvals from the National Association of Securities Dealers, Inc. in connection with the offering of the Offered Shares as contemplated herein.
(o) On or before the Closing Date, the Representatives shall have been furnished by the Bank such additional documents Underwriters and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, shall have received from the Company such further certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinionsdocuments, certificates, letters opinions and other documents in such number information as the Representatives will they may have reasonably requestrequested.
Appears in 1 contract
Samples: Underwriting Agreement (Creo Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank Company in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority and each of the other Canadian Securities Regulators under the Shelf Procedures;
Procedures and (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.L. of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the BankCompany, threatened by the Reviewing Authority Canadian Securities Regulators or the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority Canadian Securities Regulators or the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank Company or any of its Significant Subsidiaries subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ed) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx Torys LLP, Canadian counsel for the BankCompany, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx Torys LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(fe) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx Debevoise & Xxxxxxxx LLP, United States counsel for the BankCompany, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx Debevoise & Xxxxxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(f) The Underwriters shall have received on the Closing Date opinions of local counsel for the Company, dated the Closing Date, to the effect that each Restricted Subsidiary (as defined in the Base Indenture) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
(g) The Underwriters shall have received on the Closing Date opinions of in-house counsel for the Company, dated the Closing Date, in substantially the form attached hereto as Exhibit A-3.
(h) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Shearman & Overy Sterling LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx Shearman & Xxxxx Sterling LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank Company described in subsections (ed) and (fe) above shall be rendered to the Underwriters at the request of the Bank Company and shall so state therein.
(hi) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
; (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.K. of Form F-10 F-9 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
; (iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
and (iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62relation to Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Overy Xxxx LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 6 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62defined for purposes of Rule 15c3-1(c)(2)-(vi)(F) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Notes shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Notes have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion or opinions from Xxxxxxx X. Xxxxxx, Esq., Assistant General Counsel of BlakeNortheast Utilities Service Company, Xxxxxxx & Xxxxxxx LLPcounsel to the Company, Canadian or other counsel for reasonably acceptable to the BankUnderwriters, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially good standing under the form attached hereto laws of Massachusetts, has the power and authority to own its property and to conduct its business as Exhibit A-1. Blakedescribed in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, Xxxxxxx & Xxxxxxx LLP may limit their opinion except to matters arising the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the Province jurisdiction of Ontario its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each such subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture has been (A) duly qualified under the Trust Indenture Act and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Notes have been duly authorized and, executed and when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(vi) (A) the execution and delivery by the Company of, and the federal performance by the Company of its obligations under, this Agreement, the Indenture and the Notes will not contravene any provision of applicable law, rule or regulation or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, except such as have been obtained from the Commission under the Securities Act and such as may be required by the securities or Blue Sky laws of Canada the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Notes;
(vii) the statements (A) in the Pricing Disclosure Package and the Prospectus under the captions “Description of Securities Registered – Northeast Utilities – Senior Notes,” “Underwriting” and “Description of the Notes” (other than under the subcaptions “– Global Securities” and “– Certain Notices”, as to which counsel need express no opinion), (B) in the Registration Statement under Item 15, (C) in “Item 3 - Legal Proceedings” of the Company’s most recent annual report on Form 10-K incorporated by reference in the Pricing Disclosure Package and the Prospectus and (D) in “Item 1 - Legal Proceedings” of Part II of the Company’s quarterly reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending, threatened or contemplated to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, and (B) is of the opinion that the Registration Statement, on the Effective Date, and each of the Preliminary Prospectus and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package, and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. Insofar as Xx. Xxxxxx’x opinion relates to matters governed by the law of the Commonwealth of Massachusetts, he may rely on the opinion of even date therewith of Xxxxx X. Xxxxxxxxxx, Senior Counsel of Northeast Utilities Service Company, as addressed to him. The foregoing opinion shall be addressed to or shall allow the Underwriters to rely on such opinion as if they were an addressee thereto. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements on the part of the Bank Company and each Selling Stockholder contained in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall Company and each Selling Stockholder have performed all of its their respective obligations hereunder theretofore required to be performed, performed prior to the Closing Date and the following additional further conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date and each Option Closing Date, if any:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the conditionassets, business, condition (financial or otherwise), management, operations or in the earnings, business or operations earnings of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the RepresentativesUnderwriter’s judgment, impracticable or inadvisable to market offer or sell the Securities Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(cb) The Underwriters Underwriter shall have received on the Closing Date and each Option Closing Date, if any, a certificate, dated the Closing Date or such Option Closing Date, as the case may be, and signed by an officer the Chief Executive Officer and Chief Financial Officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiithat (i) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date or such Option Closing Date, as the case may be; (ii) that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or such Option Closing Date, as the case may be; and (iii) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened, and as to such other matters as the Underwriter may reasonably request. The delivery of the certificate provided for in this Section 6(b) shall constitute a representation and warranty of the Company as to the statements made in such certificate.
(c) The Underwriter shall have received on the Closing Date and each Option Closing Date, if any, a certificate, dated the Closing Date or such Option Closing Date, as the case may be, and signed by each Selling Stockholder, to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as of the Closing Date or such Option Closing Date, as the case may be, and that the Bank such Selling Stockholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or such Option Closing Date, as the case may be, and as to such other matters as the Underwriter may reasonably request.
(d) The Underwriters Underwriter shall have received on the Closing Date a certificateand each Option Closing Date, if any, an opinion of King & Spalding LLP, outside counsel for the Company, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Option Closing Date, in substantially as the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP case may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Datebe, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections Underwriter.
(e) The Underwriter shall have received on the Closing Date and each Option Closing Date, if any,an opinion of King & Spalding LLP, outside counsel for the Selling Stockholders, dated the Closing Date or such Option Closing Date, as the case may be, in form and substance reasonably satisfactory to counsel for the Underwriter.
(f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters Underwriter shall have received, received on the Closing Date and each of the date hereof and the Option Closing Date, a letter if any, an opinion of Proskauer Rose LLP, counsel for the Underwriter, dated the date hereof Closing Date or the such Option Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter. In rendering such opinion, Proskauer Rose LLP may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and its subsidiaries and of public officials.
(g) The Underwriter shall have received, on each of the date hereof, the Closing Date and each Option Closing Date, if any, a letter dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriter, from Ernst & Young BDO USA, LLP and Xxxxx Xxxxxxx LLP, chartered accountantsaddressed to the Underwriter and copied to each member of the Company’s board of directors who signed the Registration Statement at any time, 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 Time of Sale Prospectus and the ProspectusesProspectus.
(h) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 7(b) hereof, and any issuer free writing prospectus or other material required to be filed by the Company pursuant to Rule 433 under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act and in accordance with Section 7(b) hereof. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus shall have been issued, and no proceedings for such purpose shall have been instituted or, to the knowledge of the Company, threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement shall have been received; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriter’s reasonable satisfaction. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as amended of the Closing Date or supplementedeach Option Closing Date, if applicable provided as the case may be, prevent the issuance or sale of the Shares; and no injunction, decree or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or each Option Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(i) The “lock-up” agreements, each substantially in the letter form of Exhibit A hereto, between the Underwriter and the stockholders, officers and directors of the Company listed in Exhibit B relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Underwriter on or before the date hereof hereof, shall use a “cut off” date no more than three business days prior to the date hereof be in full force and (ii) the letter delivered effect on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(ij) Prior to or on the Closing Date, the Representatives The Shares shall have been furnished by approved for listing on the Bank Exchange, subject only to official notice of issuance. The obligation of the Underwriter to purchase Additional Shares hereunder is subject to the delivery to the Underwriter on the applicable Option Closing Date of such additional documents and certificates as the Representatives or counsel for the Underwriters Underwriter may reasonably request. All opinions, certificatesincluding certificates of officers of the Company, letters legal opinions and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form an accountants’ comfort letter, and substance other matters related to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies issuance of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably requestAdditional Shares.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 Rule 424(b) under the Securities Act, in each case Act within the applicable time period prescribed for such filing thereunder by the rules and regulations under the Act and in accordance with Section 6(a7(a) hereof;
(iii; the final term sheet contemplated by Section 7(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and
(iv) and all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ your reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded of any of the debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any changebeen, since the date of this Agreement or any development involving a prospective change, since the respective dates as of which information is given in the conditionPricing Prospectus and Prospectus, any material adverse change in the financial or otherwise, condition or in the earnings, business or operations earnings of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date Date, a certificate, dated as of the date of the Closing Date and signed by an the chief executive officer, the chief financial officer or the treasurer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii6(b)(i) and Section 5(b)(i) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that (ii) the Bank Company 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 hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion or opinions and a negative assurances letter of Xxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the date of the Closing Date, in the form previously agreed.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian the Company’s general counsel for the Bankor any associate general counsel, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpreviously agreed.
(f) The Underwriters shall have received on the Closing Date Date, an opinion of Xxxxx Xxxxx Shearman & Sterling LLP, United States counsel for the BankUnderwriters, dated the date of the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of Americapreviously agreed.
(g) The Underwriters and the board of directors of the Company shall have received on the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also on the Closing Date an opinion of Xxxxx & Overy LLPDate, United States counsel for the Underwritersa letter, dated the Closing Daterespective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Amgen Inc)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in to purchase the discretion of the Representatives, Securities shall be subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Final Prospectus and the Final Term Sheet shall have been timely filed with the Reviewing Authority under Commission; no notice objecting to the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness use of the Registration Statement or any part thereof stop order suspending its effectiveness or having the effect of order preventing or suspending the use of any prospectus relating to the Securities Time of Sale Information shall have been issued and no proceeding proceedings for that purpose or pursuant to Section 8A of the Act against the Company or related to the offer and sale of the Securities are pending before or shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority Commission; and any request of the Commission for inclusion of additional information in the Registration Statement, the Final Prospectus or the Commission; and
(iv) all requests for additional information on the part Time of the Reviewing Authority Sale Information or the Commission otherwise shall have been complied with to the Representatives’ reasonable satisfactionwith.
(b) Subsequent to (1) Trading generally shall not have been suspended or materially limited on the execution New York Stock Exchange, (2) trading of any securities of the Company shall not have been materially suspended or limited on the New York Stock Exchange, (3) a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or New York State authorities, and delivery of this Agreement and prior to the Time of Delivery:
(i4) there shall not have occurred a material adverse change in the financial markets, any downgradingoutbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or other calamity or crisis, nor shall any notice have been given if the effect of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, such event specified in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62this clause (4) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material Representatives makes it impracticable or inadvisable to proceed with the offer and adverse and that makes it, in the judgment sale of the Representatives, impracticable to market Securities or the delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectusherein.
(c) The Underwriters representations and warranties of the Company contained herein shall be true and correct in all material respects on and as of the Execution Time and the Closing Date, and the Company shall have received performed in all material respects all covenants and agreements contained herein to be performed on their part at or prior to the Execution Time and the Closing Date Date, as applicable.
(d) The Company shall have furnished to the Underwriters a certificate, dated the Closing Date and signed by an officer Date, of the Bank, in his or her capacity as such officer only, Chief Executive Officer and the Treasurer satisfactory to the effect set forth in Section 5(a)(iiiUnderwriters stating that: (1) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained or incorporated by reference in this Agreement Section 4 are true and correct in all material respects on and as of the Closing Date and that the Bank Company has complied with performed in all of the material respects all covenants and agreements and satisfied all of the conditions contained herein to be performed on its part at or prior to be performed or satisfied hereunder on or before the such Closing Date.
; (d2) The Underwriters shall have received on no order suspending the Closing Date a certificate, dated the Closing Date and signed by an officer effectiveness of the BankRegistration Statement or prohibiting the offer or sale of the Securities is in effect, in his or her capacity as and no proceedings for such officer onlypurpose are pending before or, to the effect thatknowledge of such officers, other than as set forth threatened by the Commission; and (3) since the date of the most recent financial statements included or incorporated by reference in the Time of Sale Prospectus Information and the Prospectuses, to his or her knowledgeFinal Prospectus (exclusive of any supplement thereto), there is has been no actionmaterial adverse change in the condition (financial or otherwise), proceeding prospects, earnings, business or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity properties of the issuance 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 Securities or Time of any action taken or to be taken by Sale Information and the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatenedFinal Prospectus.
(e) The On the date of this Agreement and on the Closing Date, the Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory a letter addressed to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Representatives and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may besuch respective dates, in form and substance satisfactory to the UnderwritersRepresentatives, from of Ernst & Young LLP, chartered accountantsthe independent registered public accounting firm of the Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and schedules and certain financial information contained in the Registration Statement, or incorporated by reference in the Time of Sale Prospectus Information and the Prospectuses, as amended or supplemented, if applicable Final Prospectus; provided that (i) the letter delivered on the date hereof such Closing Date shall use a “cut cut-off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the such Closing Date.
(if) Prior (1) W. Axxxxx Xxxxx, Corporate Counsel to or on the Company shall have furnished to the Underwriters his opinion, addressed to the Representatives and dated the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance reasonably satisfactory to the Representatives and to counsel for Representatives, substantially in the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number form attached as the Representatives will reasonably request.Exhibit A;
Appears in 1 contract
Samples: Underwriting Agreement (Chubb Corp)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank 7996289 Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion or legal opinions from Xxxxxxx X. Xxxxxxxx, Esq., Deputy General Counsel and Secretary of BlakeEversource Energy Service Company, Xxxxxxx & Xxxxxxx LLPa service company affiliate of Eversource Energy and Corporate Secretary of the Company, Canadian counsel for to the BankCompany, or other counsel reasonably acceptable to the Representatives, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of the Province Commonwealth of Ontario Massachusetts, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated or otherwise formed, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of Canada its jurisdiction of incorporation or formation, has the corporate or limited liability company power, as applicable, and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(iii) this Agreement has been duly authorized, executed and delivered by the Company; 7996289
(iv) the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Securities have been duly authorized and executed and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law, rule or regulation or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries or any of their respective properties that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Securities;
(vii) the statements in (A) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Notes”, “Underwriting” and “Description of Securities Registered” (other than under the subcaption “—Book Entry; Delivery And Form; Global Securities,” as to which such counsel need express no opinion), (B) in the Registration Statement under Item 15, (C) in “Item 3. Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference into the Pricing Disclosure Package and the Prospectus and (D) in “Item 1. Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its 7996289 subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and each of the Preliminary Prospectus and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the 7996289 Registration Statement, Prospectus or Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Xxxxxx, Hall & Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably request.writing or by telephone or facsimile confirmed in writing. 7996289
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on each Closing Date are subjectsubject to the accuracy, in the discretion when made and as of the RepresentativesApplicable Time and on each Closing Date, of the representations and warranties of the Company contained herein, to the condition that all representations and warranties and other statements of performance by the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all Company of its obligations hereunder theretofore and to be performed, and the following additional further conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or No stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of thereof, preventing or suspending the use of any prospectus relating to Base Prospectus, any Preliminary Prospectus, the Securities Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceeding proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or, to the knowledge of the Bank, or threatened by the Reviewing Authority or the Commission; and
(iv) , and all requests for additional information on the part of the Reviewing Authority Commission (to be included or incorporated by reference in the Registration Statement or the Commission Prospectus or otherwise) shall have been complied with to the Representatives’ reasonable satisfactionsatisfaction of the Manager; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 6(a), and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgradingof the following: (i) trading in securities generally on the New York Stock Exchange or Nasdaq Global Select Stock Market, nor or trading in any securities of the Company on any exchange or in the over-the-counter market, shall any notice have been given suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of any intended an act of terrorism, or potential downgrading there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of any review for a possible national emergency or war by the United States or (iv) there shall have occurred such a material adverse change that does not indicate in general economic, political or financial conditions (or the direction effect of international conditions on the possible changefinancial markets in the United States shall be such) as to make it, in the rating accorded judgment of the Manager, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
(c) (i) Since the date of the latest audited financial statements included in the General Disclosure Package or the Prospectus or incorporated by reference in the General Disclosure Package or the Prospectus as of the date hereof, neither the Company nor any of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree other than as set forth in the General Disclosure Package and the Prospectus, (ii) there shall not have been any change in the capital stock or long-term debt securities of the Bank Company or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
subsidiaries and (iiiii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the conditionbusiness, financial position, management, properties, assets, results of operation, shareholders’ equity, condition (financial or otherwise, ) or in the earnings, business or operations prospects of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time General Disclosure Package and the Prospectus as of Sale Prospectus thatthe date of this Agreement the effect of which, in any such case described in clause (i), (ii) or (iii) of this Section 5(c), is, in the judgment of the RepresentativesManager, is so material and adverse and that makes as to make it, in the judgment of the Representativesyour judgment, impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Time of Sale Registration Statement, the General Disclosure Package and the Prospectus.
(cd) The Underwriters shall have received on the each Closing Date a certificate, dated the as of such Closing Date and signed by an officer the Chief Executive Officer and Chief Financial Officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 5(a), (b) and Section 5(b)(i(c) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the each Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the each Closing Date.
(di) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the each Closing Date an opinion of Blake, Xxxxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP, Canadian outside counsel for the BankCompany, dated the as of such Closing Date, to the effect set forth in substantially the form attached hereto as Exhibit A-1. BlakeA-1 hereto, Xxxxxxx & Xxxxxxx LLP may limit their and an opinion to matters arising under the laws of Xxxx X. Xxxxxx, Executive Vice President, Acting Chief Financial Officer and General Counsel of the Province Company, dated as of Ontario such Closing Date, to the effect set forth in Exhibit A-2 hereto.
(ii) In addition, such counsel shall state that nothing has come to the attention of such counsel that causes such counsel to believe that (A) the Registration Statement (except for the financial statements and financial schedules and other financial data included or incorporated by reference therein, as to which such counsel need not express any belief) at the federal laws time the Registration Statement became effective contained any untrue statement of Canada applicable a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the General Disclosure Package (except for the financial statements and financial schedules and other financial data included or incorporated by reference therein, as to which such counsel need not express any belief) at the Applicable Time contained any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (C) the Prospectus (except for the financial statements and financial schedules and other financial data included or incorporated by reference therein, as to which such counsel need not express any belief) as of its date and as of each Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The Underwriters shall have received on the each Closing Date an opinion of Xxxxx Xxxxx Winston & Xxxxxx LLP, United States counsel for the BankUnderwriters, dated the as of such Closing Date, in substantially with respect to such matters as the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP Manager may limit their opinion to matters arising under the laws of the State of New York reasonably require, and the federal laws of the United States of AmericaCompany shall have furnished to such counsel such documents as they request to enable them to pass upon such matters.
(g) At the time of execution of this Agreement, the Underwriters shall have received from each of BDO Xxxxxxx LLP and Armanino XxXxxxx LLP a letter, in form and substance satisfactory to the Manager, addressed to the Underwriters and dated the date hereof (A) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X, and (B) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as of a date not more than two days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to the letters of each of BDO Xxxxxxx LLP and Armanino XxXxxxx LLP referred to in Section 5(g) and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Underwriters letters (the “bring-down letter”) from each of such accountants, addressed to the Underwriters and dated as of each Closing Date, (A) confirming that they are independent public accountants with the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X, (B) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as of a date not more than two days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (C) confirming in all material respects the conclusions and findings set forth in the initial letter.
(i) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Manager and the directors and officers of the Company listed on Schedule III hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Manager on or before the date hereof, shall be in full force and effect on each Closing Date.
(j) No Underwriter shall have discovered and disclosed to the Company on or prior to such Closing Date that the Registration Statement, the Prospectus or the General Disclosure Package, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading or that the General Disclosure Package, any Issuer Free Writing Prospectus, or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of fact whereby in the opinion of such counsel is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Shares, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectuses and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(l) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or result in a Material Adverse Effect, and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or result in a Material Adverse Effect.
(m) The Company shall have filed a Notification of Listing of Additional Shares with the Nasdaq Global Select Stock Market for the listing of the Shares.
(n) The Underwriters shall have received on clearance from FINRA, if applicable, as to the Closing Date an opinion amount of Xxxxx & Overy LLP, United States counsel for compensation allowable or payable to the Underwriters, dated Underwriters as described in the General Disclosure Package.
(o) Prior to each Closing Date, the Company shall have furnished to the Underwriters such further information, opinions, certificates, letters or documents as the Manager shall have reasonably requested. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such additional documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York Manager and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hetero as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hxxx & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Connecticut Light & Power Co)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. Insofar as the foregoing opinions relate to matters governed by the law of the State of New Hampshire, such counsel may rely on the opinions of even date therewith of Exxx Xxxxxx, Esq., Senior Counsel of Eversource Energy Service Company, a service company affiliate of Eversource Energy, and counsel to the Company, and Oxx & Reno P.A., counsel for the Company, each as addressed to such counsel. Insofar as the foregoing opinions relate to matters governed by the law of the State of Maine, such counsel may rely on the opinion of even date therewith of Vxxxxx Xxxx XXX, counsel for the Company, and for matters governed by the law of the State of Vermont, such counsel may rely on the opinion of even date therewith of Pxxx Xxxxx + Cxxxxxx P.C., counsel for the Company, each as addressed to such counsel. Each of the foregoing opinions shall be addressed to or shall allow the Underwriters to rely on such opinion as if they were an addressee thereto. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hxxx & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Public Service Co of New Hampshire)
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters hereunder are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements accuracy, as of the Bank in this Agreement as at the date hereof and ateach Closing Date (as if made at such Closing Date), of the representations and as ofwarranties of the Company and the Selling Shareholders contained herein or in certificates of any officer of the Company or Selling Shareholder delivered pursuant to the provisions hereof, to the Time performance by 18. the Company and the Selling Shareholders of Delivery, are true and correct, the condition that the Bank shall have performed all of its their respective obligations hereunder theretofore and to be performed, and the following additional conditions:
(ia) The Canadian Prospectus Registration Statement and all post-effective amendments thereto shall have become effective not later than 5:30 P.M., eastern time, on the date following the date of this Agreement or, with your consent, at a later time and date as you may agree in writing; all filings required by Rule 424 and Rule 430A of the Act shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) made; no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof amendment or having the effect of preventing or suspending the use of any prospectus relating to the Securities supplement thereto shall have been issued issued; no proceedings for the issuance of such an order shall have been commenced or shall be pending, or, to the knowledge of the Company, threatened or contemplated by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to you and complied with to your satisfaction; and no stop order suspending the sale of the Shares in any jurisdiction shall have been issued, and no proceeding for that purpose shall have been initiated instituted, or, to the knowledge of the BankCompany, threatened by the Reviewing Authority or the Commission; and
(iv) all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ reasonable satisfactioncontemplated.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
On each Closing Date (i) there the Registration Statement and the Prospectus, as they may then be amended or supplemented, shall not contain all statements that are required to be stated therein under the Act and shall conform in all material respects to the Act, the Company shall have occurred any downgradingcomplied in all material respects with Rule 430A (if it shall have elected to rely thereon) and neither the Registration Statement nor the Prospectus, nor as they may then be amended or supplemented, shall any notice have been given contain an untrue statement of any intended a material fact or potential downgrading omit to state a material fact required to be stated therein or of any review for a possible change that does not indicate necessary to make the direction of statements therein (with respect to the possible changeProspectus, in the rating accorded any light of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62circumstances under which they were made) under the Exchange Actnot misleading; and
(ii) there shall not have occurred any changebeen, or any development involving a prospective change, since the respective dates as of which information is given in the conditionRegistration Statement, any material adverse change in the business prospects, properties, assets, results of operation or condition (financial or otherwise) of the Company, whether or not arising in the ordinary course of business; (iii) no action, suit or proceeding at law or in equity shall be pending or, to the earnings, business or operations knowledge of the Bank and its subsidiariesCompany or any of the Selling Shareholders, taken as a whole, from threatened against the Company that would be required to be set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material other than as set forth therein and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters no proceedings shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer onlybe pending or, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties knowledge of the Bank contained in this Agreement are true and correct as Company or any of the Closing Date and that Selling Shareholders, threatened against the Bank has complied with all Company before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding could materially adversely affect the business, prospects, properties, assets, results of operations or condition (financial or otherwise) of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect thatCompany, other than as set forth in the Time of Sale Prospectus Prospectus; (iv) the Company and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or Selling Shareholders shall have complied with all agreements and satisfied all conditions on their respective parts to be taken by the Bank pursuant to this Agreement performed or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his satisfied at or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.to
Appears in 1 contract
Samples: Underwriting Agreement (Keystone Automotive Industries Inc)
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters are subjectto purchase and pay for the Shares on the Closing Date are, in the discretion of the Representatives, addition to the condition that all representations and warranties and other statements of the Bank conditions described elsewhere in this Agreement as at the date hereof and atAgreement, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore subject to be performed, and the following additional further conditions:
(ia) The Canadian Prospectus Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement shall have been filed with the Reviewing Authority issued under the Shelf Procedures;
(ii) the Prospectus Securities Act and no proceedings for that purpose shall have been filed with instituted or shall be pending or, to the Commission pursuant to General Instruction II.L knowledge of Form F-10 under the Securities ActUnderwriters or the knowledge of the Company, in each case within shall be contemplated by the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) Commission. In addition, no order having the effect of ceasing or suspending the distribution of the Securities Shares or stop order suspending the effectiveness trading in the Class B Shares or any other securities of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities Company shall have been issued by any securities commission, securities regulatory authority or stock exchange in Canada or the United States and no proceeding proceedings for that purpose shall have been initiated instituted or pending or, to the knowledge of the BankCompany, threatened shall be contemplated by the Reviewing Authority any securities commission, securities regulatory authority or stock exchange in Canada or the CommissionUnited States; and
(iv) all requests for additional information and any request on the part of the Reviewing Authority any Canadian Securities Commission or the Commission for additional information from the Company shall have been complied with to the Representatives’ reasonable satisfactionwith.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer two executive officers of the BankCompany, in his or her their capacity as such officer onlysuch, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificate may rely upon the best of their knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the date of the filing of the Canadian Final Prospectus an opinion of Quebec counsel to the Company to the effect that the French language versions of each of the Canadian Preliminary Prospectus and the Canadian Final Prospectus (including all documents incorporated by reference therein), other than certain financial information (the "Financial Information") contained or incorporated by reference therein, are in all material respects complete and proper translations of the English language versions of each of the Canadian Preliminary Prospectus and the Canadian Final Prospectus (including all documents incorporated by reference therein).
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer date of the Bank, in his or her capacity as such officer only, filing of the Canadian Final Prospectus an opinion of KPMG LLP to the effect that, other than as set forth in that the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity French language version of the issuance Financial Information is, in all material respects, a complete and proper translation of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatenedEnglish language version thereof.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian Quebec counsel for to the BankCompany, dated the Closing Date, in substantially to the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under effect that the laws of the Province of Ontario Quebec relating to the use of the French language (other than verbal communications) will have been complied with in connection with the sale of Class B Shares of the Company to purchasers in the Province of Quebec if such purchasers have received a copy of the Canadian Prospectus and forms of order and confirmation in the federal laws French language (on the assumption that the Canadian Prospectus together with the forms of Canada applicable thereinorder and confirmation constitute the entire contract for the purchase of such Class B Shares), provided that the Canadian Prospectus and forms of order and confirmation in the English language may be delivered without delivery of the French language versions thereof to purchasers in the Province of Quebec who have expressly requested, in writing, that such English language documents be delivered to them.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx of, and a side letter from, Torys LLP, United States counsel for the Bank, dated the Closing Date, substantially in substantially the form attached hereto of Schedule II hereto. In giving such opinion, such counsel may rely, as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to all matters arising under governed by the laws of jurisdictions other than the laws of the State Province of New York Ontario and the federal laws of Canada applicable therein, upon opinions of local counsel, who shall be counsel satisfactory to counsel for the United States Underwriters, acting reasonably, in which case the opinion shall state that they believe that they and the Underwriters are justified in relying upon such opinion. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of Americaofficers of the Company and certificates of public officials, provided that such certificates have been delivered to the Underwriters. The opinion letter referred to in this subparagraph (f) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(g) The Underwriters shall have received on the Closing Date an opinion of, and a side letter from, Cravath, Swaine & Moore LLP, special United States counsel for the Comxxxx, dated the Closing Date, substantially in the form attached as Schedule III hereto. The opinion letter referred to in this subparagraph (g) shall be rendered to the Underwriters at the request of Xxxxx the Company and shall so state therein.
(h) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Davies Ward Phillips & Overy Vineberg LLP, Canadian counsel for txx Xxxxxxxxxxrs, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(i) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Shearman & Sterling, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state thereinUnderwriters.
(hj) The Underwriters shall have received, on each of the date hereof of the Canadian Final Prospectus and the Closing Date, a letter dated the date hereof of the Canadian Final Prospectus or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, acting reasonably, from Ernst & Young KPMG LLP, independent chartered accountants, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial and statistical information contained included or incorporated by reference in the Registration Statement, the Time of Sale Canadian Final Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.U.S.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the several Underwriters are subject, in hereunder as to the discretion of Securities to be delivered at the Representatives, Closing Time shall be subject to the condition that all representations and warranties made by the Company, the Adviser and other statements the Administrator herein are, at and as of the Bank in this Agreement as at the date hereof and atClosing Time, and as of, the Time of Delivery, are true and correct, as if then made, to the condition that due performance by the Bank shall have performed all Company of its obligations hereunder theretofore to be performedhereunder, and to the satisfaction (or waiver by the Representatives in their sole discretion) of the following additional conditions:
(ia) The Canadian Prospectus Registration Statement shall have become effective and shall be available for the sale of all Securities to be issued and sold hereunder. All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Securities hereunder shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case made within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;by Rule 497.
(iiib) no order having the effect of ceasing or suspending the distribution None of the Securities following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement, the Pricing Disclosure Package or the Prospectus relating to or affecting the Securities; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of, or preventing the use of, the Registration Statement, the Pricing Disclosure Package or the Prospectus, or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or any part thereof or order pursuant to Section 8(e) of the 1940 Act having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated orproceedings therefor initiated, or to the knowledge of the BankCompany, threatened by the Reviewing Authority Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Securities for sale in any jurisdiction or the Commissioninitiation or threatening of any proceeding for such purpose; and
(iv) all requests for additional information on the part occurrence of any event that makes any statement made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement, the Pricing Disclosure Package or Prospectus so that, in the case of the Reviewing Authority Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Pricing Disclosure Package or the Commission shall have been complied with Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Representatives’ reasonable satisfactionRegistration Statement would be appropriate.
(bc) Subsequent No Underwriter shall have discovered and disclosed to the execution Company on or prior to the Closing Time that the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxxxx Xxxxxxx LLP, counsel to the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and delivery is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Securities, the Registration Statement, the Pricing Disclosure Package and the Prospectus, and all other legal matters relating to this Agreement and prior the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(e) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall have furnished to the Time Underwriters its written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Time, substantially in the form of Delivery:Exhibit A hereto.
(f) The Company’s general counsel shall have furnished to the Underwriters its written opinion, addressed to the Underwriters and dated the Closing Time, substantially in the form of Exhibit B hereto.
(g) Xxxxxxx LLP, shall have furnished to the Underwriters its written opinion, as Maryland counsel to the Company, addressed to the Underwriters and dated the Closing Time, substantially in the form of Exhibit C hereto.
(h) The Underwriters shall have received from Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Time, with respect to the issuance and sale of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(i) At the time of execution of this Agreement, the Underwriters shall have received from BDO USA, LLP a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, the Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) With respect to the letter of BDO USA, LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Underwriters a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated as of the Closing Time (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the Closing Time, (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package and the Prospectus, as of a date not more than three days prior to the Closing Time), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(k) Except as described in the Pricing Disclosure Package or the Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date, there shall not have occurred been any downgrading, nor shall any notice have been given of any intended change in the capital stock or potential downgrading or of any review for a possible change that does not indicate the direction long-term debt of the possible change, in the rating accorded any of the debt securities of the Bank Company or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred subsidiaries or any change, or any development involving a prospective change, in or affecting the condition, financial or otherwise, or in the earnings, net asset value, prospects, business or operations operations, whether or not arising from transactions in the ordinary course of business, of the Bank Company and its subsidiaries, taken considered as a wholeone entity, from that set forth the effect of which, in any such case described in clause (i) or (ii), is, individually or in the Time of Sale Prospectus thataggregate, in the judgment of the Representatives, is so material and adverse and that makes it, in as to make it impracticable or inadvisable to proceed with the judgment offering or the delivery of the Representatives, impracticable to market Securities being delivered on the Securities Closing Time on the terms and in the manner contemplated in the Time of Sale Pricing Disclosure Package and the Prospectus.
(cl) The Underwriters At or prior to the Closing Time, the Company and the Trustee shall have received executed and delivered the Supplemental Indenture.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the NASDAQ or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Underwriters, impracticable or inadvisable to proceed with the offering or delivery of the Securities being delivered on the Closing Date a certificateTime on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus or that, dated in the judgment of the Representatives, would materially and adversely affect the financial markets or the markets for the Securities.
(n) At the Closing Date Time, the Securities shall be rated at least BBB- by Standard & Poor’s Ratings Services, at least BBB- by Xxxxx Bond Rating Agency, Inc. and signed at least BBB- by an officer Xxxx-Xxxxx Ratings Co.
(o) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined in Section 3(a)(62) of the BankExchange Act, in his and (ii) no such organization shall have publicly announced that it has under surveillance or her capacity as such officer onlyreview, with possible negative implications, its rating of any of the Company’s debt securities.
(p) The Company shall have furnished or caused to be furnished to the effect set forth in Section 5(a)(iii) Underwriters at the Closing Time certificates of officers of the Company, the Adviser and Section 5(b)(i) above and the Administrator satisfactory to the effect that Underwriters as to the accuracy of the representations and warranties of the Bank contained in this Agreement are true Company, the Adviser and correct the Administrator herein at and as of the Closing Date and that Time, as to the Bank has complied with performance by the Company of all of the agreements and satisfied all of the conditions on its part obligations hereunder to be performed at or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior Time and as to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates other matters as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificatesletters, letters evidence and documents referred to certificates mentioned above or elsewhere in this Section 5 will Agreement shall be deemed to be in compliance with the provisions of this Agreement hereof only if they are satisfactory in form and substance to the Representatives and reasonably satisfactory to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter are subject, in the discretion of the RepresentativesUnderwriter, to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
; (ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L II.K. of Form F-10 F-9 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
; (iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
and (iv) all requests for additional information on the part of the Reviewing Authority or the Commission shall have been complied with to the Representatives’ Underwriter’s reasonable satisfaction.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62relation to Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the RepresentativesUnderwriter, is material and adverse and that makes it, in the judgment of the RepresentativesUnderwriter, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package.
(c) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesCanadian Prospectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securities. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters Underwriter shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, United States counsel for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters Underwriter shall have received on the Closing Date an opinion of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Overy Xxxx LLP, United States counsel for the UnderwritersUnderwriter, dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativesUnderwriter. Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters Underwriter at the request of the Bank and shall so state therein.
(h) The Underwriters Underwriter shall have received, on each of the date hereof of filing the Prospectuses and on the Closing Date, a letter dated the date hereof of filing the Prospectuses or the Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersUnderwriter, from Ernst & Young LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives Underwriter shall have been furnished by the Bank such additional documents and certificates as the Representatives Underwriter or counsel for the Underwriters Underwriter may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 6 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives Underwriter and to counsel for the UnderwritersUnderwriter. The Bank will furnish to the Representatives Underwriter conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives Underwriter will reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Canadian Imperial Bank of Commerce /Can/)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Bank in this Agreement as are, at the date hereof and at, and as of, of the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(ia) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) ; no order having the effect of ceasing or suspending the distribution of the Securities Notes or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the offering of the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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) Subsequent to the execution and delivery of this Agreement and prior to the Time of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities Notes on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her their capacity as such officer only, to the effect set forth in Section 5(a)(iii) and Section 5(b)(i) above and to the effect that the representations and warranties of the Bank contained in this Agreement are true and correct as of the Closing Date and that the Bank has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her their capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the ProspectusesProspectus, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities Notes or the Conversion Shares or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesNotes or the authorization or issuance of the Conversion Shares. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an opinion of Blake, Xxxxxxx & Xxxxxxx LLP[ ], Canadian counsel for the Bank, dated the Closing Date, in substantially form and substance reasonably satisfactory to the form attached hereto Underwriters. [ ], as Exhibit A-1. BlakeCanadian counsel for the Bank, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP[ ], United States counsel for the Bank, dated the Closing Date, in substantially form and substance reasonably satisfactory to the form attached hereto Underwriters. [ ], as Exhibit A-2. Xxxxx Xxxxx LLP United States counsel for the Bank, may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP[ ], United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory with respect to the Representativesissuance and sale of the Notes, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus as amended or supplemented, if applicable, and other related matters as the Representatives may reasonably require. Xxxxx & Xxxxx LLP [ ] may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP[ ], chartered accountantsChartered Professional Accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the ProspectusesProspectus, as amended or supplemented, if applicable provided that (i) the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Dateapplicable.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used defined for purposes of Rule 436(g)(2) of the Rules and Regulations;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in section 3(a)(62accordance with Section 7(b) under hereof; the Exchange ActCompany shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Prospectus.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Notes shall be rated at least Baa2 by Xxxxx’x, BBB by Standard & Poor’s and BBB+ by Fitch, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each such rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Notes have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion from Xxxxxxx X. Xxxxxx, Esq., Assistant General Counsel of Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the BankNortheast Utilities Service Company, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts corporation in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of Massachusetts, has the Province of Ontario power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) this Agreement has been duly authorized, executed and delivered by the Company;
(iii) the Indenture (A) has been duly qualified under the Trust Indenture Act, and (B) has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(iv) the Notes 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 in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Notes will not contravene any provision of applicable law or the Restated Articles of Organization or By-Laws of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company that is material to the Company, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, except the DPU Order, such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of Canada the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Notes; and the DPU Order is in full force and effect, is final and is not subject to rehearing or appeal and is sufficient to authorize the Company to issue the Notes and to perform its obligations under the Notes, the Indenture and this Agreement;
(vi) the statements (A) in the Pricing Disclosure Package and the Prospectus under the captions “Description of Securities Registered ¾Western Massachusetts Electric Company ¾ The WMECO Senior Notes”, “Underwriting” and “Description of the Series E Notes,” (other than under the subcaptions “ ¾Global Securities” and “¾Certain Notices,” as to which such counsel need express no opinion), (B) in the Registration Statement under Item 15, (C) in “Item 3 - Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Pricing Disclosure Package and the Prospectus and (D) in “Item 1 - Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports;
(vii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company is a party or to which any of the properties of the Company is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(viii) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company (A) is in compliance with any and all applicable Environmental Laws, (B) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company;
(x) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xi) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial or statistical data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) (except for financial statements, schedules and other financial or statistical data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial or statistical data contained or incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, 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,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or,
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. Insofar as Xx. Xxxxxx’x opinion relates to matters governed by the law of the Commonwealth of Massachusetts, he may rely on the opinion of even date therewith of Xxxxx X. Xxxxxxxxxx, Senior Counsel of Northeast Utilities, addressed to him. The foregoing opinion shall be addressed to or shall allow the Underwriters to rely on such opinion as if they were an addressee thereto. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Western Massachusetts Electric Co)
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iii7246319 Sections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(ec) At the Closing Date, the Securities shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Securities have been assigned such ratings;
(d) The Underwriters shall have received on the Closing Date an a legal opinion or legal opinions from Xxxxx X. Xxxxxxxxxx, Esq., Assistant General Counsel of BlakeEversource Energy Service Company and Assistant Corporate Secretary of the Company, Xxxxxxx & Xxxxxxx LLPcounsel to the Company, Canadian or other counsel for reasonably acceptable to the BankRepresentatives, dated the Closing Date, to the effect that:
(i) the Company has been duly formed, is validly existing as a Massachusetts voluntary association in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising good standing under the laws of the Province Commonwealth of Ontario Massachusetts, has the power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted;
(ii) each majority-owned subsidiary of the Company has been duly incorporated or otherwise formed, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of Canada its jurisdiction of incorporation or formation, has the corporate or limited liability company power, as applicable, and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; each subsidiary possesses such material certificates, authorizations, franchises or permits issued by the appropriate state or federal regulatory authorities or bodies as are necessary to conduct its business as currently conducted; 7246319
(iii) this Agreement has been duly authorized, executed and delivered by the Company;
(iv) the Indenture has been (A) duly qualified under the Trust Indenture Act, and (B) duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(v) the Securities have been duly authorized and executed and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles of equity;
(A) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law, rule or regulation or the Declaration of Trust of the Company or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries or any of their respective properties that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, and (B) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except such as have been obtained under the Securities Act and such as may be required by the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion, in connection with the offer and sale of the Securities;
(vii) the statements in (A) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Notes”, “Underwriting” and “Description of Securities Registered” (other than under the subcaption “—Book Entry; Delivery And Form; Global Securities,” as to which such counsel need express no opinion), (B) in the Registration Statement under Item 15, (C) in “Item 3. Legal Proceedings” of the Company’s most recent Annual Report on Form 10-K incorporated by reference into the Pricing Disclosure Package and the Prospectus and (D) in “Item 1. Legal Proceedings” of Part II of the Company’s Quarterly Reports on Form 10-Q, if any, filed since such annual report, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings as of the dates of such reports and fairly summarize the matters referred to therein as of the dates of such reports; 7246319
(viii) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(x) except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(xi) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, no order directed to the adequacy of any document incorporated by reference in the Pricing Disclosure Package and the Prospectus has been issued by the Commission and no proceedings for either such purpose or pursuant to Section 8A of the Act against the Company or related to the offering are pending before or threatened by the Commission;
(xii) such counsel (A) is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment to the Prospectus, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement, on the Effective Date, and each of the Preliminary Prospectus and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus as to which such counsel need not express any opinion), complied as to form in all material respects with the Securities Act and the Rules and Regulations. 7246319 Such counsel shall also state that he has no reason to believe that (except for financial statements, schedules and other financial data contained or incorporated by reference in the Registration Statement, Prospectus or Pricing Disclosure Package and except for that part of the Registration Statement that constitutes the Form T-1, as to all of which such counsel need not express any belief):
(A) any part of the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the date such opinion is delivered, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure Package and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received from Xxxxxx, Hall & Xxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date and addressed to the Underwriters, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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 7246319 Representatives. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date and any Option Closing Date, as applicable, are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date or the Option Closing Date, as applicable:
(i) there no stop order suspending the effectiveness of the Registration Statement shall not have occurred any downgrading, nor shall any notice have been given issued under the Securities Act, no order preventing or suspending the use of any intended preliminary prospectus or potential downgrading the Prospectus shall have been issued and no proceedings for any of those purposes shall have been initiated or of threatened by the Commission, and any review for a possible change that does not indicate request on the direction part of the possible change, in Commission for additional information shall have been complied with to the rating accorded any reasonable satisfaction of counsel to the debt securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section 3(a)(62) under the Exchange Act; andUnderwriters.
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting (x) any of the conditionMulti-Tenant Properties, (y) the Single-Tenant Properties, taken as a whole, or (z) the condition (financial or otherwise), or in the earnings, business or operations prospects, whether or not arising from transactions in the ordinary course of business, of the Bank Company and its subsidiaries, Subsidiaries taken as a whole, from that set forth in the Registration Statement and the Time of Sale Prospectus that, in the judgment as of the Representatives, is material and adverse and date of this Agreement that makes it, in the judgment of the RepresentativesRepresentative, impracticable to market the Securities Shares on the terms and in the manner contemplated in the Time of Sale Prospectus; and
(iii) the Prospectus and each free writing prospectus that the Company is required to file pursuant to Rule 433(d) shall have been timely filed with the Commission under the Securities Act.
(cb) The Underwriters shall have received on the Closing Date and any Option Closing Date, as the case may be, a certificate, dated as of the Closing Date or the Option Closing Date, as the case may be, and signed by an officer the Chief Executive Officer and the Chief Financial Officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 5(a)(i) and Section 5(b)(i(ii) above and to the effect that the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date or the Option Closing Date, as the case may be, and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or the Option Closing Date.
(d) The Underwriters shall have received on , as the Closing Date a certificate, dated the Closing Date and signed by an officer of the Bank, in his or her capacity as such officer only, to the effect that, other than as set forth in the Time of Sale Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the Securitiescase may be. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date or the Option Closing Date, as applicable, an opinion of Bass, Xxxxx & Xxxx PLC, outside counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the Underwriters, with respect to the matters identified on Exhibit A-1 hereto.
(d) The Underwriters shall have received on the Closing Date or the Option Closing Date, as applicable, an opinion of Xxxxxxx LLP, Maryland counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the Underwriters, with respect to the matters identified on Exhibit A-2 hereto.
(e) The Underwriters shall have received on the Closing Date an or the Option Closing Date, as applicable, the favorable tax opinion of BlakeBass, Xxxxxxx Xxxxx & Xxxxxxx LLPXxxx PLC, Canadian tax counsel for the BankCompany, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the Underwriters, substantially to the form attached hereto as effect set forth in Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinA-3 hereto.
(f) The Underwriters shall have received on the Closing Date or the Option Closing Date, as applicable, an opinion of Xxxxx Xxxxx Lovells US LLP, United States counsel for the BankUnderwriters, dated the Closing Date or the Option Closing Date, as applicable, in substantially form and substance reasonably satisfactory to the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of AmericaUnderwriters.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Datehereof, a letter dated the date hereof or the Closing Date, as the case may behereof, in form and substance satisfactory to the Underwriters, from Ernst & Young KPMG LLP, chartered independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the ProspectusesProspectus.
(h) At Closing Date, as amended or supplementedand, if applicable provided applicable, the Option Closing Date, the Underwriters shall have received from KPMG LLP a letter, dated as of Closing Date, and, if applicable, the Option Closing Date, to the effect that (i) they reaffirm the statements made in the letter delivered on furnished pursuant to subsection (g) of this Section, except that the specified date hereof referred to shall use be a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no not more than three business days prior to the Closing DateTime.
(i) Prior The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between you and the officers, directors and stockholders of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date, the Representatives .
(j) The Common Stock shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) If a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(l) In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission on or before the date of this Agreement and shall have become effective automatically upon such filing.
(m) The Company shall have furnished by to the Bank Representative such additional further information, certificates and documents and certificates as the Representatives or counsel for the Underwriters Representative may reasonably request. All opinions, certificates, letters and documents referred to in this Section 5 will be in compliance with the provisions of this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Bank will furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 1 contract
Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject, in the discretion of the Representatives, subject to the condition that all representations and warranties and other statements of the Bank in this Agreement as at the date hereof and at, and as of, the Time of Delivery, are true and correct, the condition that the Bank shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(i) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures;
(ii) the Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act, in each case within the applicable time period prescribed for such filing thereunder and in accordance with Section 6(a) hereof;
(iii) no order having the effect of ceasing or suspending the distribution of the Securities or stop order suspending the effectiveness of the Registration Statement or any part thereof or having the effect of preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Bank, threatened by the Reviewing Authority or the Commission; and
(iv) 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.
(ba) Subsequent to the execution and delivery of this Agreement and prior to the Time of DeliveryClosing Date:
(i) there shall not have occurred any downgradingdowngrading or withdrawal, nor shall any notice have been given of any intended or potential downgrading or withdrawal 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 debt Company’s securities of the Bank or any of its Significant Subsidiaries by any “nationally recognized statistical rating organization,” as such term is used in section defined for purposes of Section 3(a)(62) under of the Exchange Act;
(ii) any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 7(b) hereof; the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or Prospectus or otherwise shall have been complied with; and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Rules and Regulations objecting to use of the automatic shelf registration statement form; and
(iiiii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a wholeCompany, from that set forth in the Time of Sale Prospectus Pricing Disclosure Package that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market proceed with the Securities offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Time of Sale ProspectusPricing Disclosure Package and this Agreement.
(cb) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Bank, in his or her capacity as such officer onlyCompany, to the effect set forth in Section 5(a)(iiiSections 6(a)(i) and Section 5(b)(i(ii) above and to the effect that (i) the representations and warranties of the Bank Company contained in this Agreement are true and correct as of the Closing Date and that the Bank Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an officer of (ii) since the BankEffective Date, in his or her capacity as such officer only, to the effect that, other than as no event has occurred that should have been set forth in a supplement or amendment to the Time of Sale Registration Statement, the Prospectus and the Prospectuses, to his or her knowledge, there is no action, proceeding or investigation pending or threatened by or against the Bank or any of its Significant Subsidiaries, at law or in equity, before or by any federal, provincial, state, municipal or other governmental department, commission, board or agency, domestic or foreign, which questions the validity of the issuance of the Securities or of any action taken or to be taken by the Bank pursuant to this Agreement or in connection with the issuance of the SecuritiesIssuer Free Writing Prospectus that has not been so set forth. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) At the Closing Date, the Bonds shall have at least the ratings specified in the Pricing Disclosure Package, and the Company shall have delivered to the Underwriters a letter, dated the Closing Date, from each relevant rating agency, or other evidence reasonably satisfactory to the Underwriters, confirming that the Bonds have been assigned such ratings;
(d) The Underwriters shall have received (i) from Ropes & Gray LLP, outside counsel to the Company, an opinion dated the Closing Date in the form attached hetero as Exhibit A, and (ii) from internal counsel to the Company, an opinion dated the Closing Date in the form attached hereto as Exhibit B. The Company shall have furnished to each such counsel such documents as they request for the purpose of enabling them to pass on such matters. The opinions of Counsel described in this Section 6(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on from Cxxxxx, Hxxx & Sxxxxxx LLP, special counsel for the Underwriters, an opinion dated the Closing Date an opinion of Blakeand addressed to the Underwriters, Xxxxxxx & Xxxxxxx LLPwith respect to such matters as the Representatives may reasonably require, Canadian and the Company shall have furnished to such counsel such documents as they request for the Bank, dated the Closing Date, in substantially the form attached hereto as Exhibit A-1. Blake, Xxxxxxx & Xxxxxxx LLP may limit their opinion purpose of enabling them to matters arising under the laws of the Province of Ontario and the federal laws of Canada applicable thereinpass upon such matters.
(f) The Underwriters shall have received on the date hereof and on the Closing Date an opinion of Xxxxx Xxxxx LLPDate, United States counsel for letters, the Bank, first dated the date hereof and the second dated the Closing Date, in substantially the form attached hereto as Exhibit A-2. Xxxxx Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America.
(g) The Underwriters shall have received on the Closing Date an opinion of Xxxxx & Overy LLP, United States counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. Xxxxx & Xxxxx LLP may limit their opinion to matters arising under the laws of the State of New York and the federal laws of the United States of America. The opinions of counsel for the Bank described in subsections (e) and (f) above shall be rendered to the Underwriters at the request of the Bank and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst Deloitte & Young Touche LLP, chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statementmost recent Preliminary Prospectus, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectuses, as amended or supplemented, if applicable provided that (i) Prospectus. If any of the letter delivered on the date hereof shall use a “cut off” date no more than three business days prior to the date hereof and (ii) the letter delivered on the Closing Date shall use a “cut off” date no more than three business days prior to the Closing Date.
(i) Prior to or on the Closing Date, the Representatives shall have been furnished by the Bank such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, certificates, letters and documents referred to conditions specified in this Section 5 will be 6 shall not have been fulfilled when and as provided in compliance with this Agreement, or if any of the provisions of opinions and certificates mentioned above or elsewhere in this Agreement only if they are shall not be reasonably satisfactory in form and substance to the Representatives and to 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. The Bank will furnish Notice of such cancellation shall be given to the Representatives conformed copies of such opinions, certificates, letters and other documents Company in such number as the Representatives will reasonably requestwriting or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Connecticut Light & Power Co)
