Conditions to Underwriters’ Obligations. The obligation of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties of the Company, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions: (a) If required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Date, as the case may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof. (b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter. (c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares. (d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof. (e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter. (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or (iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect. (g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfied.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Xxxxx X. Xxxx, Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, an affiliate which provides legal and other professional services to the underwriting arrangements pertaining Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of any counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the Offered SharesUnderwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase Securities under Section 4 on an Option Closing Date, is this Agreement are subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy satisfaction of each of the following Conditions:
(a) All the representations and warranties of the CompanyCompany contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. All agreements of the Company set forth in Sections 6(a) through (g), Sections 6(k) and 6(l) of this Agreement that are required to the performance be performed or complied with by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On at or prior to the Closing Date shall have been performed or any Option complied with by the Company at or prior to the Closing Date, as . The Company shall have performed or complied in all material respects with all of its agreements herein contained (other than those referenced in the case may be, no immediately preceding Sentence) and required to be performed or complied with by it at or prior to the Closing Date.
(i) No stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that purpose shall have been initiated commenced or shall be pending or, to the Company's knowledge, shall be contemplated before or threatened by the SEC or by any authority Commission, (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects, and (iii) no stop order suspending the sale of the Securities in any jurisdiction designated by referred to in Section 6(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to market the Underwriter pursuant Securities or to Section 5(f) hereofenforce contracts for the sale of the Securities.
(bi) All corporate proceedings and other matters incident to Since the authorization, form and validity date of this Agreement, the Offered Shares and the form of latest balance sheet included in the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement there shall not have been any Material Adverse Change, whether or not arising in the ordinary course of business, (ii) since the date of the latest balance sheet included in the Registration Statement and the transactions contemplated hereby Prospectus, there shall be satisfactory not have been any material adverse change, or any development involving a prospective material adverse change, in all the capital stock or long-term debt, or any material respects to counsel for increase in short-term debt, of the Underwriter. The Company or any of its Subsidiaries and (iii) the Company and its Subsidiaries shall have furnished to such counsel all documents and information no liability or obligation, direct or contingent, that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed is material to the Underwriter, Company and its Subsidiaries taken as a whole and is required to be disclosed in the notes to its financial statements in accordance with GAAP and which opinion shall be satisfactory to is not so disclosed in or incorporated by reference into the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered SharesRegistration statement.
(d) The Underwriter You shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter certificate of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and Date, executed on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as behalf of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company confirming the matters set forth in paragraphs (a), (b) and (c) of this Section 10.
(e) You shall have received an opinion (satisfactory to you and your counsel), dated the Closing Date, of McGlinchey Stafford, a Xxxxxxxxxxxx Limited Liability Company, counsel for the Company, to the effect that:
(i) (A) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and (B) has the corporate power and authority to own and lease its properties and to conduct its business as described in the Prospectus;
(ii) the Company has the corporate power and authority to enter into and perform this Agreement and the Indenture and to issue, sell and deliver the Securities; this Agreement and the Indenture have been duly and validly authorized by all necessary corporate action by the Company, and have been duly executed and delivered by the Company;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the "Description of Capital Stock" section of the Registration Statement and the Prospectus;
(iv) the Securities have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) neither the issuance and sale of the Securities, nor the performance of the Company's obligations pursuant to this Agreement or the Indenture will (A) conflict with, result in a breach of, or constitute a default under the terms of any Louisiana statute, rule or regulation to which the Company or any of its properties is subject Company or (B) violate any of the provisions of the charter or by-laws of the Company as in effect on the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that opinion;
(ivii) the representations articles of incorporation and warranties bylaws of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior conform to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined descriptions thereof contained in the Registration Statement and the Prospectus and any amendments the provisions of Louisiana law described in the Registration Statement and the Prospectus conform to the descriptions thereof contained in the Registration Statement and the Prospectus.
(f) You shall have received an opinion (satisfactory to you and your counsel), dated the Closing Date, of Baker & McKenzie and Bxxxx & Sxxxx, Vxxxxxelax xxx Argentine counsel for the Company, respectively, to the effect that:
(i) Each of Pride International, C.A., Perforaciones Quitral-Co de Venezuela, S.A. and Pride International, S.A. (the "SOUTH AMERICAN SUBSIDIARIES") (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and (B) has the corporate power and authority to own and lease its properties and to conduct its business as described in the Prospectus;
(ii) Each of the South American Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or supplements theretoits ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
(iii) all of the issued and outstanding capital stock of each of the South American Subsidiaries has been duly authorized and validly issued, and is fully paid and nonassessable, and except as disclosed in the conditions set forth Prospectus, the shares of capital stock of each South American Subsidiary are owned directly or indirectly by the Company free and clear of any perfected security interest and, to such counsel's knowledge, any other security interests, claims, liens or encumbrances; and
(iv) to such counsel's knowledge, except as disclosed in Section 7(gthe Prospectus or in this Agreement, there are no outstanding (a) hereof securities or obligations of the any of the South American Subsidiaries convertible into or exchangeable for any capital stock of any such Subsidiary, (b) warrants, rights or options to subscribe for or purchase from any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (c) obligations of any such subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligations, or any such warrants, rights or options.
(g) You shall have been satisfied.received the written opinion of Jean-Marc Laveisxxxxx, Xxxxxxx
Appears in 1 contract
Samples: Underwriting Agreement (Pride Petroleum Services Inc)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase several Underwriters hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is will be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy and completeness of the representations and warranties made by the Fund, the Adviser and the Sub-Adviser contained in Section 1 herein as of the CompanyApplicable Time, the Closing Time and any Option Closing Time, to the due performance by the Company Fund and the Adviser of its covenants and their respective obligations hereunder, and to the continuing satisfaction (or waiver by the Underwriters in their sole discretion) of the following additional conditions:
(a) If The Registration Statement, including any Rule 462(d) Registration Statement, shall have become effective and all filings with the Commission required by Rule 497 under the Regulations, Securities Act to have been filed in connection with the Prospectus distribution of the Securities shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations made within the applicable time period prescribed for such filing by Rule 497.
(b) At the Regulations. On Closing Time, none of the following events shall have occurred and be continuing: (i) receipt by the Fund of any request for additional information from the Commission or prior 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 Closing Date Registration Statement, the Preliminary Prospectus or the Prospectus; (ii) the issuance by the Commission or any Option Closing Date, as the case may be, no other federal or state governmental authority of any stop order or other order preventing or suspending the effectiveness of the Registration Statement (or the initiation of any proceedings for that purpose, including any document incorporated notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Fund, threatened by reference thereinthe Commission; (iii) receipt by the Fund of any notification with respect to the suspension of the qualification or the sale exemption from qualification of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings Securities for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated by the SEC or by any authority sale in any jurisdiction designated by or the Underwriter pursuant initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement, the Preliminary Prospectus, the Disclosure Package or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement, the Preliminary Prospectus, the Disclosure Package or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to Section 5(fstate any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Preliminary Prospectus, the Disclosure Package and/or the 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) hereofthe Fund's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(bc) All corporate proceedings and other matters incident to The Underwriters shall not have advised the authorizationFund that the Registration Statement, form and validity of this AgreementPreliminary Prospectus, the Offered Shares Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of a material fact regarding the Underwriters that in the Underwriters' opinion is material, or omits to state a fact regarding the Underwriters that in the Underwriters' opinion is material and is required to be stated therein or is necessary to make the form statements therein, in light of the Registration Statement circumstances under which it was made, not misleading.
(d) At the Closing Time, there shall not have been any material change in the authorized capital stock of the Fund or any Fund Material Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect, or any development that may reasonably be expected to cause a Fund Material Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Fund's debt or preferred securities by any rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of the Fund's debt or preferred securities, the effect of which, in the case of any such action by a rating organization described above, in the sole judgment of the Underwriters (without relieving the Fund of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering and sale of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(e) At the Closing Time, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter Underwriters shall have received from the Underwriter's counselfavorable opinions, an dated as of the Closing Time, of Chapman and Cutler LLP and Bingham McCutchen LLP, special Massachuxxxxx Xund cxxxxxx (collectxxxxx, "XXXX XXXXSEL"), in substantially the form attached hereto as Exhibit 5(e), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(f) At the Closing Time, the Underwriters shall have received the favorable opinion, dated as of the Closing Date Time, of Chapman and any Option Closing DateCutler LLP, as the case may be, and addressed counsel to the UnderwriterAdviser ("ADVISER COUNSEL"), which opinion xx xxbstanxxxxxx the form attached hereto as Exhibit 5(f), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(g) At the Closing Time, the Underwriters shall be have received the favorable opinion, dated as of the Closing Time, of Dechert LLP, counsel to the Sub-Adviser ("SUB-ADVISER COUNSEL"), in substantially the form attached hereto as Exhibit 5(g), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(h) At the Closing Time, the Underwriters shall have received the favorable opinion, dated as of the Closing Time, of Troutman Sanders LLP, counsel for the Underwriters.
(x) Xx xxe Xxxxxxg Time, the Underwriters shall have received (1) certificates of the Chief Financial Officer or Chief Accounting Officer of the Fund, the Adviser and the Sub-Adviser, each dated as of the Closing Time, in the form attached hereto as Exhibit 5(i) and (2) certificates of the Secretary of the Fund, the Adviser and the Sub-Adviser, each dated as of the Closing, in form and substance reasonably satisfactory to the Underwriter.
(cj) The NASD shall have indicated it has no objection to At the underwriting arrangements pertaining to the sales of any time of the Offered Shares.
(d) The Underwriter execution of this Agreement, the Underwriters shall have received at or prior to the Closing Date from Underwriter's counsel Deloitte & Touche LLP a memorandum or summaryletter dated such date, in form and substance satisfactory to the UnderwriterUnderwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the qualification financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(k) At the Closing Time, the Underwriters shall have received from Deloitte & Touche LLP a letter dated as of the Closing Time, in form and substance satisfactory to the Underwriters, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(l) At the Closing Time, the Securities shall have been approved for offering listing on the NYSE Amex, subject only to official notice of issuance.
(m) At the time of the execution of this Agreement, the Company shall have procured for the benefit of the Underwriters lock-up agreements, in the form of Schedule C attached hereto, from the following Trustees of the Fund: Richard E. Erickson, Thomas R. Kadlec and sale Niel B. Nielson.
(x) Xx xxx xxenx xxxx xxx Xxxxxwritexx xxxxxxxx xxxir option provided in Section 2(b) hereof to purchase all or any portion of the Over-Allotment Securities, the obligations of the several Underwriters to purchase the applicable Over-Allotment Securities shall be subject to the conditions specified in the introductory paragraph of this Section 5 and to the further condition that, at the applicable Option Closing Time, the Underwriters shall have received:
(1) Certificates, dated such Option Closing Time, to the effect set forth in Section 5(i) hereof, and signed by the Underwriter Chief Financial Officer or Chief Accounting Officer of the Offered Shares under Fund, the securities or Blue Sky laws Adviser and the Sub-Adviser, except that the references in such certificate to the Closing Time shall be changed to refer to such Option Closing Time.
(2) The favorable opinions of Fund Counsel, in form and substance satisfactory to counsel for the Underwriters, dated such jurisdictions designated Option Closing Time, relating to the Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(e) hereof.
(3) The favorable opinion of Adviser Counsel, in form and substance satisfactory to counsel for the Underwriter pursuant Underwriters, dated such Option Closing Time, relating to the Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(f) hereof.
(e4) On The favorable opinion of Sub-Adviser Counsel, in form and substance satisfactory to counsel for the Closing Date and any Underwriters, dated such Option Closing DateTime, there shall have been delivered relating to the Underwriter a signed Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(g) hereof.
(5) The favorable opinion of Shumaker Williams, P.C.Troutman Sanders LLP, counsel for the Underwriters, dated suxx Xxxxxn Xxxxxxg Time, relating to the Company, dated as of each Over-Allotment Securities to be purchased on such xxxx xxd xxxxxxxed Option Closing Time and otherwise to the Underwriter, to the effect set forth in Exhibit A hereto, or to such same effect as is otherwise reasonably the opinion required by Section 5(h) hereof.
(6) A letter from Deloitte & Touche LLP, in form and substance satisfactory to the Underwriter.
(f) At the Closing Date Underwriters and on any dated such Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given Time, substantially in the Registration Statement same form and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, substance as the case may be, and addressed letter furnished to the UnderwriterUnderwriters pursuant to Section 5(k) hereof, to the effect except that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfied.the
Appears in 1 contract
Samples: Underwriting Agreement (Energy Income & Growth Fund)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(c) Xxxx X. XxXxxx, Deputy General Counsel of the Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VII hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VIII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VIII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Xxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Xxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) The Company shall not have sustained, since the Registration Statement date of the latest audited financial statements incorporated by reference in the Time of Sale Information, 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 disclosed or contemplated in the Time of Sale Information, and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Xxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Xxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives’ reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorization[ ], form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(c) [ ], [ ] of the Company, shall have furnished to you his/her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VII hereto.
(d) The Representatives shall have received from [ ], counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to signed by the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates Chairman of the Board, Chief Executive Officer and the Officer, President, Chief Operating Officer, Chief Financial Officer Officer, Secretary, General Counsel, Treasurer or Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, [ ] shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VIII hereto. As of the Time of Delivery, [ ] shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VIII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of [ ], counsel to the Underwriters, at [ ], at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, an affiliate which provides legal and other professional services to the underwriting arrangements pertaining Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of any counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the Offered SharesUnderwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for the Firm Shares that Units which it has agreed to purchase hereunder on hereunder, are subject to the Closing Date, and to purchase and pay for any Optional Shares accuracy (as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at of the date hereof, on and as of the Closing Date Dates) of and on any Option Closing Date to the continuing accuracy of compliance with the representations and warranties of the Company, Company herein and to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, the Prospectus The Registration Statement shall have been become effective and you shall have received notice thereof not later than 10:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior respect to the Closing Date Units or any Option Closing Dateto the Registration Statement, as the case may be, containing information regarding the public offering price of the Units has been filed with the Commission, or such later time and date as shall have been agreed to by you; if required, the Prospectus or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 434 and 424(b) under the Act; on or prior to the Closing Dates no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that or a similar purpose shall have been initiated instituted or shall be pending or, to your knowledge or to the knowledge of the Company's knowledge, shall be contemplated by the SEC Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Xxxxxxx, Xxxxx, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter;
(b) At the First Closing Date, you shall have received the opinion, dated as of the First Closing Date, of O'Melveny & Xxxxx LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriter. In rendering such opinion, such counsel may rely upon the Company's representations and warranties in this Agreement and upon certificates of any officer of the Company or by any authority public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of the State of California upon opinions of counsel satisfactory to you, in any jurisdiction designated by which case the Underwriter pursuant opinion shall state that they have no reason to Section 5(f) hereofbelieve that you and they are not entitled to so rely.
(bc) At the First Closing Date, you shall have received the opinion, dated as of the First Closing Date, of Xxxxxxxx, Xxxxxx & Xxxx, LLP, patent counsel for the Company, in form and substance satisfactory to counsel for the Underwriter.
(d) All corporate proceedings and other legal matters incident relating to the authorization, form and validity of this Agreement, the Offered Shares Registration Statement, the Prospectus and other related matters shall be reasonably satisfactory to or reasonably approved by Xxxxxxx, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, and you shall have received from such counsel a signed opinion, dated as of the First Closing Date, with respect to the validity of the issuance of the Units, the form of the Registration Statement and Prospectus (other than the Prospectusfinancial statements and other financial data contained therein), and all other legal matters relating to the execution of this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriterother related matters as you may reasonably require. The Company shall have furnished to counsel for the Underwriter such counsel all documents and information that as they may have reasonably requested to enable request for the purpose of enabling them to pass upon render such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On You shall have received a letter prior to the effective date of the Registration Statement and again on and as of the First Closing Date and any Option Closing Datefrom Price Waterhouse LLP, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to independent public accountants for the Company, dated as substantially in the form approved by you, and including estimates of each such xxxx xxd xxxxxxxed to the Underwriter, to Company's revenues and results of operations for the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to period ending at the Underwriterend of the month immediately preceding the effective date and results of the comparable period during the prior fiscal year.
(f) At the Closing Date and on any Option Closing Date: Dates, (i) the representations and warranties of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of the Closing Dates and the Company shall have performed all of its obligations hereunder and satisfied all the conditions on its part to be satisfied at or prior to such Closing Date; (ii) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
or supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules and Regulations, and shall in all material respects conform to the requirements thereof, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall 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; (iviii) there shall have been, since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretogiven, there shall have been no material adverse change, lossor any development involving a prospective material adverse change, reductionin the business, termination properties, condition (financial or nonotherwise), results of operations, capital stock, long-renewal term or short-term debt or general affairs of any contract to which the Company or the Subsidiaries is a party, from that has not been, but would be required to be set forth in the Registration Statement and the Prospectus, except changes which the Registration Statement and Prospectus indicate might occur after the effective date of the Registration Statement, and the Company shall not have incurred any material liabilities or entered into any material agreement not in the ordinary course of business other than as referred to in the Registration Statement and Prospectus; and (viv) except as set forth in the Prospectus, no action, suit or proceeding at law or in equity shall be pending or or, to the knowledge of the Company, threatened against the Company or the Subsidiaries that which would be required to be set forth in the Prospectus, other than as set forth thereinRegistration Statement, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
materially and adversely affect the business, property, condition (gfinancial or otherwise), results of operations or general affairs of the Company, and (v) The Underwriter you shall have received received, at the First Closing Date and any Option Closing Date certificates Date, a certificate signed by each of the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, dated as of the date of the Closing Date or Option First Closing Date, as evidencing compliance with the case may be, and addressed to the Underwriter, to the effect that provisions of this subsection (if).
(g) the representations and warranties Upon exercise of the Company option provided for in this Agreement are true Section 2(b) hereof, the obligations of the Underwriter to purchase and correct, pay for the Option Units referred to therein will be subject (as if made at of the date hereof and as of the Option Closing Date or Date) to the following additional conditions:
(i) The Registration Statement shall remain effective at the Option Closing Date, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending, or, to your knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any reasonable request on the part of the Commission for additional information shall have been complied with to the satisfaction of Xxxxxxx, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter.
(ii) At the Option Closing Date there shall have been delivered to you the signed opinions of O'Melveny & Xxxxx LLP, counsel for the Company, and Christie, Parker & Xxxx, LLP, patent counsel for the Company, each dated as of the Option Closing Date, in form and substance satisfactory to Bachner, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, which opinions shall be substantially the same in scope and substance as the case may beopinions furnished to you at the First Closing Date pursuant to Sections 4(b) and 4(c) hereof, except that such opinions, where appropriate, shall cover the Option Units.
(iii) At the Option Closing Date there shall have been delivered to you a certificate of the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Option Closing Date, substantially the same in scope and substance as the certificate furnished to you at the First Closing Date pursuant to Section 4(f) hereof.
(iv) At the Option Closing Date there shall have been delivered to you a letter in form and substance satisfactory to you from Price Waterhouse LLP, dated the Option Closing Date and addressed to the Underwriter confirming the information in their letter referred to in Section 4(e) hereof and stating that nothing has come to their attention during the Company has complied with all period from the agreements, fulfilled all ending date of their review referred to in said letter to a date not more than five business days prior to the covenants and satisfied all the conditions on its part Option Closing Date which would require any change in said letter if it were required to be performed, fulfilled or satisfied dated the Option Closing Date.
(v) All proceedings taken at or prior to the Option Closing Date in connection with the sale and issuance of the Option Units shall be reasonably satisfactory in form and substance to you, and you and Bachner, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, shall have been furnished with all such documents, certificates, and opinions as you may reasonably request in connection with this transaction in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or its compliance with any of the covenants or conditions contained herein.
(h) No action shall have been taken by the Commission or the Option NASD the effect of which would make it improper, at any time prior to the Closing Date, as the case may be, and (ii) the signers for members of the certificate NASD to execute transactions (as principal or agent) in the Units, Class A Common Stock or the Warrants and no proceedings for the taking of such action shall have carefully examined been instituted or shall be pending, or, to the Registration Statement and knowledge of the Prospectus and Underwriter or the Company, shall be contemplated by the Commission or the NASD. The Company represents that at the date hereof it has no knowledge that any amendments such action is in fact contemplated by the Commission or supplements theretothe NASD. The Company shall have advised the Underwriter of any NASD affiliation of any of its officers, and directors, shareholders or their affiliates.
(i) If any of the conditions set forth herein provided for in this Section 7(g) hereof shall not have been satisfiedfulfilled as of the date indicated, this Agreement and all obligations of the Underwriter under this Agreement may be cancelled at, or at any time prior to, each Closing Date by you. Any such cancellation shall be without liability of the Underwriter to the Company.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereofFirst Time of Delivery, on the Closing Date and on any Option Closing Date and, with respect to the continuing Optional Shares, any Second Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of such Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, Shares and the Prospectus Preferred Shares shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the applicable Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Xxxxx X. Xxxx, Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to you her written opinion, dated the applicable Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the applicable Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Shares, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the applicable Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or applicable Time of Delivery with the Option Closing Date, same effect as if made on the case may be, applicable Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and applicable Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus or the Final Prospectus there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the applicable Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the applicable Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been any decrease in the rating of any of the Company’s securities by any of Xxxxx’x Investors Service Inc. or S&P Global Ratings, a division of S&P Global Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware.
(i) The Representatives shall have received from the Depositary a copy of the certificate evidencing the deposit of the Preferred Shares delivered at the applicable Time of Delivery.
(j) Prior to or at the applicable Time of Delivery, the Company shall have carefully examined furnished or shall furnish to the Registration Statement and Representatives such additional certificates of officers of the Prospectus and Company as to such other matters as the Representatives may reasonably request. If any amendments or supplements thereto, and of the conditions set forth specified in this Section 7(g) hereof 7 shall not have been satisfiedfulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the applicable Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the applicable Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation several obligations of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase Underwriters hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is are subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany on the date hereof and at the time of purchase (and the several obligations of the Underwriters at the additional time of purchase are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the time of purchase (unless previously waived) and at the additional time of purchase, to as the case may be), the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditionsconditions precedent:
(a) If required The Company shall furnish to you at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Xxxxxxxx & Worcester LLP, counsel for the Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form and substance satisfactory to Xxxxx Xxxxxxxxxx LLP, in the form set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Xxxxxxxx Xxxxxx & Finger, P.C., special Delaware counsel of the Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form and substance satisfactory to Xxxxx Xxxxxxxxxx LLP, in the form set forth in Exhibit C hereto.
(c) You shall have received at the time of purchase and at the additional time of purchase, as the case may be, the opinion of Ropes & Xxxx LLP, special litigation counsel for the Company, dated the time of purchase or the additional time of purchase, as the case may be, with respect to descriptions of ongoing litigation the Company is involved in described in the Registration Statement and the Prospectus, and other related matters, as the Underwriters may require in form and substance satisfactory to Xxxxx Xxxxxxxxxx LLP.
(d) You shall have received at the time of purchase and at the additional time of purchase, as the case may be, the opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time of purchase or the additional time of purchase, as the case may be, with respect to the issuance and sale of the Shares by the RegulationsCompany, the Registration Statement, the Prospectus and other related matters as the Underwriters may require. In addition, Xxxxx Xxxxxxxxxx LLP may rely on the opinion of Xxxxxxxx Xxxxxx & Finger, P.C. as to all matters of Delaware law.
(e) You shall have received from Ernst & Young LLP letters addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms approved by UBS, and dated (i) the date of this Agreement, which letter shall cover, without limitation, the information in the Registration Statement, the Preliminary Prospectus and the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any, and (ii) the time of purchase and the additional time of purchase, as the case may be, which letter shall cover, without limitation, the information in the Registration Statement and the Prospectus, and the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any.
(f) You shall have received from PricewaterhouseCoopers LLP letters addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms approved by UBS, and dated (i) the date of this Agreement, which letter shall cover, without limitation, the information in the Registration Statement, the Preliminary Prospectus and the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any, and (ii) the time of purchase and the additional time of purchase, as the case may be, which letter shall cover, without limitation, the information in the Registration Statement and the Prospectus, and the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any.
(g) You shall have received from KPMG LLP letters addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms approved by UBS, and dated (i) the date of this Agreement, which letter shall cover, without limitation, the information in the Registration Statement, the Preliminary Prospectus and the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any, and (ii) the time of purchase and the additional time of purchase, as the case may be, which letter shall cover, without limitation, the information in the Registration Statement and the Prospectus, and the various financial disclosures, if any, contained in the Permitted Free Writing Prospectuses, if any.
(h) No amendment or supplement to the Registration Statement or Prospectus shall have been made to which you have objected in writing.
(i) The Registration Statement shall have become effective, and the Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M. New York City time on the second full business day after the date of this Agreement or such earlier time as may be required under the Act, and any registration statement pursuant to Rule 462(b) under the Act required in connection with the offering and sale of the Regulations within Shares shall have been filed and become effective no later than 10:00 P.M. New York City time, on the applicable time period prescribed for such filing by the Regulations. On or prior date of this Agreement.
(j) Prior to the Closing Date or any Option Closing Datetime of purchase and the additional time of purchase, as the case may be, (i) no stop order or other order preventing or suspending with respect to the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state proceedings initiated under Section 8(d) or foreign securities law, and no proceedings for that purpose shall have been initiated or shall be pending or, to 8(e) of the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(fAct; (ii) hereof.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and all amendments thereto, or modifications thereof, if any, 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) none of the Preliminary Prospectuses or the Prospectus, and all other legal matters relating no amendment or supplements thereto, shall 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, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the 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 a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(k) Between the time of execution of this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for time of purchase or the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as additional time of the Closing Date and any Option Closing Datepurchase, as the case may be, (i) no material and addressed adverse change or any development involving a prospective material adverse change in the business, properties, management, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries, taken as a whole, shall occur or become known and (ii) no transaction which is material and adverse to the UnderwriterCompany and the Subsidiaries, which opinion taken as a whole, shall be satisfactory to have been entered into by the UnderwriterCompany or any of the Subsidiaries.
(cl) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter You shall have received at or prior the letters referred to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f3(jj) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(gm) The Underwriter shall have received Company will, at the Closing Date time of purchase and any Option Closing Date certificates additional time of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Datepurchase, as the case may be, and addressed deliver to you a certificate signed by two of the Company’s executive officers in the form of Exhibit D.
(n) The Shares shall have been approved for listing for quotation on the AMEX, subject only to notice of issuance at or prior to the Underwritertime of purchase or the additional time of purchase, as the case may be.
(o) The Company shall have furnished to you such other documents and certificates as to the effect that (i) accuracy and completeness of any statement in the representations and warranties of Registration Statement, the Company in this Agreement are true and correctPreliminary Prospectus, as if made at and the Prospectus or any Permitted Free Writing Prospectus as of the Closing Date or time of purchase and the Option Closing Dateadditional time of purchase, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case you may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfiedreasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Travelcenters of America LLC)
Conditions to Underwriters’ Obligations. The obligation respective obligations of the Underwriter Underwriters hereunder are subject to purchase the accuracy on the date hereof and pay for the Firm Shares that it has agreed to purchase hereunder on and as of the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties of the CompanyIssuer contained herein, to the performance by the Company Issuer of its covenants and their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) If required by The Underwriters shall not have discovered and disclosed to the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On Issuer on or prior to the Closing Date that the Registration Statement, Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus, or any Option Closing Dateamendment or supplement thereto, as contains an untrue statement of a fact which, in the case may beopinion of Weil, no stop Gotshal & Xxxxxx LLP, counsel to the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is necessary in order or other order preventing or suspending to make the effectiveness statements therein, in the light of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities lawcircumstances then prevailing, and no proceedings for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofnot misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of Shares, the Registration Statement Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information 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 Underwriter. The Company Underwriters, and the Issuer shall have furnished to such counsel all documents and information that they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have indicated it has no objection been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the underwriting arrangements pertaining extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the sales of any reasonable satisfaction of the Offered SharesRepresentatives.
(d) The Underwriter Proskauer Rose LLP shall have received at or prior furnished to the Underwriters its written opinions, as counsel to the Issuer and the Operating Partnership, and its negative assurance letter addressed to the Underwriters and dated the Closing Date from Underwriter's counsel a memorandum or summaryDate, in form and substance satisfactory to the UnderwriterUnderwriters.
(e) Xxxxxxx LLP shall have furnished to the Underwriters its written opinion, as Maryland counsel to the Issuer, addressed to the Underwriters and dated the Closing Date, in form and substance satisfactory to the Underwriters.
(f) The Underwriters shall have received from Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, dated the Closing Date, with respect to the qualification for offering issuance and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing DateShares, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto Statement, the Time of Sale Information and the Prospectus and any amendments orother related matters as the Underwriters may reasonably require, and the Issuer shall have furnished to such counsel such documents and information as such counsel reasonably requests for the purpose of enabling them to pass upon such matters.
(ivg) At the time of execution of this Agreement, the Underwriters shall have received from:
(i) Xxxxx Xxxxxxxx LLP a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (x) confirming that they are independent public accountants with respect to the Issuer within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board 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 (y) 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 Registration Statement Time of Sale Information, as of a date not more than three days prior to the date hereof), the conclusions and any post-effective amendment thereto findings of such firm with respect to the financial information and (z) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(ii) McGladrey LLP a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (x) confirming that they are independent public accountants with respect to CapLease, Inc. and its subsidiaries within the meaning of the Securities Act and the Prospectus applicable rules and any amendments regulations adopted by the Commission and the Public Company Accounting Oversight Board 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 (y) stating, as of the date hereof (or, with respect to matters involving changes or supplements theretodevelopments since the respective dates as of which specified financial information is given in the Time of Sale Information, there 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 (z) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(iii) Deloitte & Touche LLP a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (x) confirming that they are independent public accountants with respect to Xxxx Real Estate Investments, Inc. and its subsidiaries within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board 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 (y) 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 Time of Sale Information, 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 (z) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to each of the letters of Xxxxx Xxxxxxxx LLP, McGladrey LLP and Deloitte & Touche LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial letter”), the Issuer shall have been no material adverse changefurnished to the Underwriters a “bring-down letter” of such accountants, lossaddressed to the Underwriters and dated the Closing Date (i) confirming that they are independent public accountants with respect to the Issuer, reductionCapLease, termination Inc., or nonXxxx Real Estate Investments, Inc., as applicable, within the meaning of the Securities Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-renewal 01 of any contract Regulation S-X of the Commission, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in each of the Company Time of Sale Information or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of a date not more than three days prior to the date of the Closing Date or Option Closing Date), as the case may beconclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and addressed to (iii) confirming in all material respects the Underwriter, to conclusions and findings set forth in the effect that initial letter.
(i) Except as described in the representations Time of Sale Information and warranties the Prospectus (exclusive of any amendment or supplement thereto), no event or condition of a type described in Section 2(t) shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information and the Prospectus and the effect of which is, individually or in the aggregate, in the judgment of the Company Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Offered Shares being delivered on the Closing Date on the terms and in this Agreement the manner contemplated in the Time of Sale Information and the Prospectus.
(j) The Issuer shall have furnished or caused to be furnished to the Underwriters dated as of the Closing Date a certificate of the chief executive officer or chief financial officer of the Issuer and one additional senior executive officer of the Issuer who is satisfactory to the Underwriters, as to such matters as the Representatives may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Issuer and the Operating Partnership in Section 2 are true and correct, as if made at correct on and as of the Closing Date or the Option Closing Date, as and each of the case may be, Issuer and that the Company Operating Partnership has complied with all the agreements, fulfilled all the covenants its agreements contained herein and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied hereunder at or prior to the Closing Date;
(ii) That they have examined the Registration Statement, the Time of Sale Information and the Prospectus, and, in their opinion, (A) the Registration Statement and the Time of Sale Information, as of the Time of Sale, and the Prospectus, as of its date and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (B) since the date of the Registration Statement, the Time of Sale Information and the Prospectus, no event has occurred which should have been set forth in a supplement or amendment to Registration Statement, the Time of Sale Information and the Prospectus; and
(iii) To the effect of Section 5(c), Section 5(i) (provided that no representation with respect to the judgment of the Representatives need be made) and Section 5(k).
(k) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement there shall not have occurred any of the following: (i) downgrading shall have occurred in the rating accorded to the Issuer’s or Operating Partnership’s securities by any “nationally recognized statistical rating organization,” as that term is used by the Commission in Section 15E under the Exchange Act, or (ii) such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of Issuer’s or Operating Partnership’s securities.
(l) The Issuer shall have executed and delivered the Officers’ Certificate, and the Underwriters shall have received an original copy thereof, duly executed by the Issuer.
(m) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement there shall not have occurred any of the following: (i) (A) trading in securities generally on any securities exchange that has registered with the Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market), or (B) trading in any securities of the Issuer 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 general moratorium on commercial banking activities 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), or any other calamity or crisis either within or outside the United States, in each case, as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering, sale or delivery of the Offered Shares being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus or that, in the judgment of the Representatives, could materially and adversely affect the financial markets or the markets for the Offered Shares.
(n) The “lock-up” agreements, each substantially in the form of Schedule IV-1 hereto, between you and certain officers and directors of the Issuer listed on Schedule IV-2 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 full force and effect on the Closing Date or the Option Additional Closing Date, as the case may be, and .
(iio) The Issuer shall have furnished or caused to be furnished to the signers Underwriters dated as of the Time of Sale a certificate have carefully examined of the Registration Statement and chief financial officer of the Prospectus and any amendments or supplements theretoIssuer, and as to such matters as the conditions set forth in Section 7(gRepresentatives may reasonably request.
(p) hereof The Offered Shares shall have been satisfiedapproved for listing, subject to notice of issuance, by NASDAQ and reasonably satisfactory evidence of such approval shall have been provided to the Underwriters.
(q) On or prior to the Closing Date, the Issuer shall have furnished to the Underwriters such further certificates and documents as the Underwriters may reasonably request. 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 counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (American Realty Capital Properties, Inc.)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Xxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, an affiliate which provides legal and other professional services to the underwriting arrangements pertaining Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Xxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of any counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the Offered SharesUnderwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase Underwriters hereunder and pay for under the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Pricing Agreement shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties of the CompanyOfferors herein are, at and as of the Time of Delivery, true and correct, the condition that the Offerors shall have performed all of their respective obligations hereunder to the performance by the Company be performed at or before such Time of its covenants and obligations hereunderDelivery, and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Preferred Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(c) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives' reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorization[ ], form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company Guarantor, shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an you their written opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales Time of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summaryDelivery, in form and substance reasonably satisfactory to you, to the Underwritereffect that:
(i) business as described in the Final Prospectus as amended or supplemented;
(ii) The issue and sale of the Preferred Securities and the performance by the Offerors of their respective obligations under this Agreement, the Pricing Agreement, the Declaration, the Preferred Securities, the Common Securities, the Indenture, the Subordinated Debt Securities, the Guarantee Agreements and the Guarantees, and the consummation of the transactions contemplated herein and therein will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument relating to the Trust or the Guarantor or any of its subsidiaries set forth on Schedule A attached hereto [Schedule A to be a list of material agreements]; nor will any such action result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Guarantor or the Declaration or the Certificate of Trust of the Trust or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantor, its subsidiaries or any of their respective properties, provided, that the foregoing opinion is limited to those statutes, laws, rules and regulations of the United States of America, the State of Delaware and the State of Illinois, in each case, which, in such counsel's opinion, are normally applicable to transactions of the type contemplated by this Agreement, and provided further, that no opinion need be given with respect to (i) the qualification for offering Act, the Exchange Act, the Trust Indenture Act, the rules and sale regulations issued pursuant to each such act, or any order, rule or regulation made or established by any insurance official or regulatory authority or the Underwriter National Association of the Offered Shares under the Securities Dealers, Inc., (ii) any state securities or Blue Sky laws of such jurisdictions designated by in connection with the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date purchase and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates distribution of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfied.Preferred
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation several obligations of the Underwriter Underwriters hereunder to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any each Option Closing Date to Date, as the continuing accuracy of the representations and warranties of the Companycase may be, are subject to the performance by the Company and each of its covenants and the Selling Stockholders of their respective obligations hereunder, hereunder and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Securities Act Regulations within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(a)(i) hereof; all material required to be filed by the Company pursuant to Rule 433(d) of the Securities Act Regulations shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 of the Securities Act Regulations. On ; if the Company has elected to rely upon Rule 462(b) of the Securities Act Regulations, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., New York City time, on the date of this Agreement; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any part thereof or the Prospectus or any part thereof or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission or any state securities commission; and all requests for additional information on the part of the Commission shall have been complied with the reasonable satisfaction of the Representatives.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or any the Option Closing Date, as the case may be, no stop order there shall not have occurred any downgrading, nor shall any notice have been given of (i) any downgrading, (ii) any intended or other order preventing potential downgrading, or suspending (iii) any review or possible change that does not indicate an improvement, in the effectiveness rating accorded any securities of or guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 15c3-1(c)(2)(vi)(F) of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Exchange Act or any state or foreign securities law, and no proceedings for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRegulations.
(bc) All corporate proceedings The respective representations and other matters incident to warranties of the authorization, form and validity of this Agreement, the Offered Shares Company and the form of the Registration Statement Selling Stockholders contained herein are true and the Prospectus, correct on and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any or the Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at on and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has and the Selling Stockholders shall have complied with all the agreements, fulfilled agreements and all the covenants and satisfied all the conditions on its its, his or her part to be performed, fulfilled performed or satisfied hereunder at or prior to the Closing Date or the Option Closing Date, as the case may be.
(d) (i) Neither the Company nor any Subsidiary shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the signers respective dates as of the certificate have carefully examined which information is given in the Registration Statement and the Prospectus and Prospectus, (A) there shall not have been any amendments material change in the capital stock or supplements theretolong-term debt of the Company or any Subsidiary or the Bank, and (B) there shall not have been any Material Adverse Effect, the conditions effect of which, in any such case described in clause (i) or, (ii) is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Closing Date or Option Closing Date, as the case may be, on the terms and in the manner contemplated in the Pricing Prospectus.
(e) The Representatives shall have received on and as of the Closing Date and the Option Closing Date, as the case may be, (i) a certificate of two executive officers of the Company, at least one of whom has specific knowledge about the Company’s financial matters, satisfactory to the Representatives, to the effect (A) set forth in Section 7(g6(b) hereof and Section 6(c) (with respect to the respective representations, warranties, agreements and conditions of the Company), (B) that none of the situations set forth in clause (i) or (ii) of Section 6(d) shall have occurred, and (C) that no stop order suspending the effectiveness of the Registration Statement has been issued and to the knowledge of the Company, no proceedings for that purpose have been satisfiedinstituted or are pending or contemplated by the Commission, (ii) a certificate of such Selling Stockholder, satisfactory to each Representative, to the effect set forth in Section 6(c) (with respect to the respective representations, warranties, agreements and conditions of the Selling Stockholders) and (iii) if any Selling Stockholder is not a U.S. person for U.S. federal income tax purposes, the Company will deliver to each Underwriter (or its agent), on or before the Closing Date, (A) a certificate with respect to the Company’s status as a “United States real property holding corporation,” dated not more than 30 days before the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (B) proof of delivery to the IRS of the required notice, as described in Treasury Regulations 1.897-2(h)(2);
(f) The Representatives shall have received on and as of the Closing Date and the Option Closing Date, as the case may be, a certificate of the chief financial officer of the Company, in form and substance reasonably satisfactory to the Representatives, regarding certain financial and statistical information included in the Pricing Prospectus and any applicable Issuer Free Writing Prospectus, and addressing such other matters as may be set forth therein;
(g) On the Closing Date or Option Closing Date, as the case may be, Xxxxxxx LLP, counsel for the Company, shall have furnished to the Representatives their favorable written opinion and negative assurance letter, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit A hereto and to such further effect as counsel for the Underwriters may reasonably request.
(h) On the Closing Date, each of Xxxxxxxx Xxxxxxx LLP and Xxxxxx Law LLC, counsel for the Selling Stockholders, shall have furnished to the Representatives their favorable written opinion, dated the Closing Date, as the case may be, in form and substance satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit B hereto and to such further effect as counsel for the Underwriters may reasonably request.
(i) BKD, LLP shall have furnished to the Representatives a letter, dated the date of this Agreement, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and each Issuer Free Writing Prospectus, if any.
(j) On each Closing Date or Option Closing Date, as the case may be, the Representatives shall have received from BKD, LLP a letter, dated the Closing Date or such Option Closing Date, as the case may be, to the effect that it reaffirms the statements made in its letter or letters furnished pursuant to Section 6(i), except that the specified date referred to therein for the carrying out of procedures shall be not more than three business days prior to the Closing Date or such Option Closing Date, as the case may be.
(k) On each Closing Date and Option Closing Date, the Representatives shall have received the opinion of Hunton Xxxxxxx Xxxxx LLP, counsel for the Underwriters in connection with the offer and sale of the Shares, in form and substance satisfactory to the Underwriters, dated as of such date, with executed copies for each of the other Underwriters named on the cover page of the Prospectus.
(l) The Shares to be delivered on the Closing Date or Option Closing Date, as the case may be, shall have been approved for listing on Nasdaq, subject to official notice of issuance.
(m) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and conditions.
(n) The Representatives shall have received written confirmation from the Company that all the stockholders, officers and directors of the Company listed on Exhibit C-1 hereto have been notified substantially in the applicable form attached as Exhibit C hereto that certain transfer restrictions set forth in the Company’s Bylaws and/or the Stock Purchase Agreement are being enforced, as applicable, and that such transfer restrictions shall be in full force and effect on the Closing Date or Option Closing Date, as the case may be.
(o) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network from the Company in form and substance satisfactory to the Representatives.
(p) On or prior to the Closing Date or Option Closing Date, as the case may be, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives shall reasonably request.
(q) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on Nasdaq, (iii) a general moratorium on commercial banking activities declared by any of 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 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 event specified in either of clauses (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 being delivered at such Closing Date or Option Closing Date, as the case may be, on the terms and in the manner contemplated in the Prospectus.
(r) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated, subject to the provisions of Section 13, by the Representatives by notice to the Company and the Selling Stockholders at any time at or prior to the Closing Date or Option Closing Date, as the case may be, and such termination shall be without liability of any party to any other party, except as provided in Section 5, Section 8 and Section 13.
Appears in 1 contract
Samples: Underwriting Agreement (Crossfirst Bankshares, Inc.)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Xxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Xxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(gand as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxxx X. Xxxxx, Esq., Executive Vice President, General Counsel and Secretary of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter consolidated financial statements of the Offered Shares under Company and its subsidiaries incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On Neither the Closing Date and Company nor any Option Closing Date, there of its subsidiaries shall have been delivered to sustained, since the Underwriter a signed opinion date of Shumaker Williamsthe latest audited consolidated financial statements incorporated by reference in the Time of Sale Information, P.C.any loss or interference with its business from fire, counsel to the Companyexplosion, dated as of each such xxxx xxd xxxxxxxed to the Underwriterflood or other calamity, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal consolidated results of any contract to which operations of the Company and its subsidiaries, taken as a whole, other than as disclosed or contemplated in the Subsidiaries Time of Sale Information, the effect of which, in any such case described in clause (i) or (ii), is a partyin the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The Nasdaq Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The Nasdaq Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in Section 7(g8(a) and Section 8(e) hereof and as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Samples: Underwriting Agreement (Ameren Corp)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxxx X. Xxxxx, Esq., Senior Vice President, General Counsel and Secretary of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters under the Pricing Agreement shall be subject, in their discretion, to purchase the condition that all representations and pay for warranties and other statements of the Firm Shares Trust and the Company herein are, at and as of the Closing Date, true and correct in all material respects, the condition that it has agreed each of the Trust and the Company shall have performed all of their respective obligations hereunder to purchase hereunder on be performed at or before the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties of the Company, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented relating to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 4(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives' reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters, shall have furnished to the Underwriters such written opinion or opinions, dated such Closing Date, with respect to the formation of the Trust, the incorporation of the Company, the validity of the Securities and the Debt Securities being delivered on such Closing Date and with respect to the Registration Statement, the Final Prospectus and such other related matters as the Underwriters may reasonably request, and such counsel all documents shall have received such papers and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.;
(c) The NASD Skadden, Arps, Slate, Meagxxx & Xlom XXX, counsel for the Trust and the Company, shall have indicated it has no objection furnished to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Underwriters their written opinion, dated such Closing Date from Underwriter's counsel a memorandum or summaryDate, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given Underwriters, substantially in the Registration Statement and any post-effective amendment thereto and form attached to the Prospectus and any amendments or supplements theretoPricing Agreement as Schedule III. Insofar as such opinion involves factual matters, there shall have been no material adverse changesuch counsel may rely, lossto the extent such counsel deems proper, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date upon certificates of the Chief Executive Officer and the Chief Financial Officer officers of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement subsidiaries and the Prospectus Trust and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfiedcertificates of public officials.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters of any Securities under the Pricing Agreement relating to purchase such Securities shall be subject, in their discretion, to the condition that all representations and pay for warranties and other statements of the Firm Shares Company herein or in certificates of any officer of the Company or any subsidiary of the Company delivered pursuant to the provisions hereof are, at and as of the Closing Date true and correct, the condition that it has agreed the Company shall have performed all of its obligations hereunder and under the Pricing Agreement relating to purchase hereunder on such Securities to be performed at or before the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties of the Company, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:.
(a) If required by the Regulations, the The Final Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 4(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives’ reasonable satisfaction;
(b) All corporate proceedings and other matters incident Debevoise & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to the authorizationUnderwriters such written opinion or opinions, form and dated such Closing Date, with respect to the incorporation of the Company, the validity of this Agreementthe Securities being delivered on such Closing Date, the Offered Shares and the form of the Registration Statement and the Final Prospectus, and all such other legal related matters relating to this Agreement as the Underwriters may reasonably request, and the transactions contemplated hereby shall be satisfactory in all material respects to such counsel for the Underwriter. The Company shall have furnished to received such counsel all documents papers and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter ;
(c) Xxxxxxx Xxxxxxxxx, Chief Counsel-Public Company and Corporate Law, of the Company, shall have received from furnished to the Underwriter's counselUnderwriters his written opinion, an opiniondated the Closing Date, substantially in the form attached hereto as Annex II;
(d) Xxxxx & XxXxxxx LLP, counsel for the Company, shall have furnished to the Underwriters their written opinions, each dated the Closing Date, in form and substance substantially in the form attached hereto as Annex III-A with respect to certain corporate and tax matters, and Annex III-B with respect to the Registration Statement, Disclosure Package and the Final Prospectus;
(e) The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request, including, but not limited to, a certificate of the Chief Accounting Officer of the Company, dated as of the Closing Date and any Option Closing Date, as substantially in the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.form of Annex IV hereto;
(cf) The NASD shall have indicated it has no objection to Company will furnish the underwriting arrangements pertaining to the sales of any Representatives a certificate of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter Chief Accounting Officer of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed the Closing Date, relating to the Underwriterunaudited capsule pro forma financial information set forth in the Disclosure Package, together with the related disclosure set forth in the Disclosure Package and the Final Prospectus under the caption “Summary — Unaudited Pro Forma Capsule Financial Information,” substantially in the form of Annex V hereto;
(g) (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, in form and substance reasonably satisfactory to you, confirming that they are independent registered public accountants with respect to the Company and the Company’s subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, and further to the effect set forth in Exhibit A Annex VI hereto, or and (ii) on the Closing Date for the applicable Securities, Deloitte & Touche LLP shall have furnished to such effect as is otherwise the Representatives a letter, dated the date of delivery thereof, in form and substance reasonably satisfactory to you, that reaffirms the Underwriter.statements made in the letter furnished pursuant to subclause (i) of this Section 6(g), except that the specified date referred to shall be a date not more than three business days prior to the Closing Date;
(fi) At On the date hereof, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter, dated the date hereof, in form and substance reasonably satisfactory to you, confirming that they are independent registered public accountants with respect to the Acquired Company and the Acquired Company’s subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, and further to the effect set forth in Annex VII hereto, and (ii) on the Closing Date for the applicable Securities, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter, dated the date of delivery thereof, in form and on any Option Closing Date: substance reasonably satisfactory to you, that reaffirms the statements made in the letter furnished pursuant to subclause (i) of this Section 6(h), except that the Registration Statement and any post-effective amendment thereto and specified date referred to shall be a date not more than three business days prior to the Prospectus and any amendments orClosing Date;
(ivi) Neither the Company nor any Significant Subsidiary shall have sustained (i) since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package 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, otherwise than as set forth or contemplated in the Disclosure Package and (ii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoDisclosure Package, there shall not have been no material adverse change, loss, reduction, termination or non-renewal any change in the surplus of any contract to which Significant Subsidiary or the capital stock of the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth any increase in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against long-term debt of the Company and its respective subsidiaries considered as a whole, or any change, or any development involving a prospective change, in or affecting the business, financial position, stockholders’ equity or results of operations of the Company and the Significant Subsidiaries that would be required to be set forth in the Prospectusconsidered as a whole, other otherwise than as set forth thereinor contemplated in the Disclosure Package, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the applicable Securities on the terms and in the manner contemplated in the Final Prospectus;
(j) After the Applicable Time (i) no proceedings downgrading shall be pending or threatened against or directly affecting have occurred in the rating accorded the debt securities of the Company or any Significant Subsidiary or the Subsidiaries before financial strength or claims paying ability of the Company or any Significant Subsidiary by A.M. Best & Co., Fitch Ratings, Ltd., Xxxxx’x Investors Service, Inc. or Standard & Poor’s Ratings Services, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, or shall have given notice of any federalintended or potential downgrading of, state its rating of any debt security or other commissionthe financial strength or the claims paying ability of the Company or any Significant Subsidiary, board the effect of which, in any such case described in clause (i) or administrative agency wherein an unfavorable decision(ii), ruling is in the judgment of the Representatives so material and adverse as to make it impracticable or finding would have a Material Adverse Effect.inadvisable to proceed with the offering or the delivery of the applicable Securities on the terms and in the manner contemplated in the Final Prospectus;
(gk) At or after the Applicable Time, there shall not have occurred any of the following: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the applicable Securities, whether in the primary market or in respect of dealings in the secondary market;
(ii) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (iii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iv) a suspension or material limitation in clearing and/or settlement in securities generally; (v) a general moratorium on commercial banking activities declared by either Federal or New York State authorities; or (vi) the material outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or any other national or international calamity or emergency (including without limitation as a result of an act of terrorism) if the effect of any such event specified in this clause (vi) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering or the delivery of the applicable Securities on the terms and in the manner contemplated in the Final Prospectus;
(l) The Underwriter Company shall have complied with any request by the Representatives with respect to the furnishing of copies of the Final Prospectus in compliance with the provisions of Section 4(e) hereof;
(m) At the Closing Date, the Representatives shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer a certificate of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of the Company contained in this Agreement Section 1 hereof are true and correct, correct in all respects with the same force and effect as if though expressly made at and as of the Closing Date or the Option Closing Date, as the case may be, and that (ii) the Company has complied in all respects with all the agreements, fulfilled agreements and all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied performed under this Agreement at or prior to the Closing Date or the Option Closing Date, as the case may be, and ; and
(iin) the signers As of the certificate date of the Pricing Agreement, the Representatives shall have carefully examined received “lock-up agreements,” substantially in the Registration Statement form of Annex VIII hereto, from the persons and entities listed on Schedule II to the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfiedPricing Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Metlife Inc)
Conditions to Underwriters’ Obligations. The obligation of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase Your several obligations hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is are subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany herein at and as of the date hereof and at and as of the Closing Date, to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Date, as the case may be, no No stop order or other order preventing or suspending the effectiveness of the Registration Statement shall be in effect at the Closing Date; no proceedings for that purpose shall be pending before or threatened by the Commission at the Closing Date; any request for additional information on the part of the Commission (including any document incorporated by reference therein) to be included in the Registration Statement or the sale of any of the Offered Shares Prospectus or otherwise) shall have been issued complied with to the satisfaction of Morgan, Lewis & Xxxxxxx XXX, couxxxx xor the Underwriters; subsequent to the execution of this Agreement, the rating assigned by any nationally recognized securities rating agency to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have been lowered at or before the Closing Date; and no amendment or supplement to the Registration Statement or Prospectus shall have been filed hereafter to which you shall have objected, in writing, after having received reasonable notice.
(b) The legality and sufficiency of all proceedings relative to the authorization and issuance of the stock shall have been approved by Steven F. McCarrel, Xxxxxx Xxxxxxx Counsel of the Company and you shall have received his opinion or opinions, dated the Closing Date, and in form satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly organized and validly existing and in good standing under the Act laws of the State of Oregon and is duly qualified to do business as a foreign corporation in the States of Arizona, California, Washington and Montana and the District of Columbia, with power and authority (corporate and other) to own its properties and operate its business, and neither the character of the properties owned by it nor the nature of the business it transacts makes necessary its licensing or qualification as a foreign corporation in any other state or jurisdiction;
(ii) The Company's subsidiaries have each been duly organized and are validly existing and in good standing under the laws of the states or jurisdictions in which they have been organized, with power and authority (corporate and other) to own their -4- respective properties and to operate their respective businesses, and each of such corporations is duly qualified to do business as a foreign securities corporation in each jurisdiction in which the character of the properties owned or leased by it or the nature of the business it transacts makes such qualification necessary;
(iii) The Company and each of such active subsidiaries have valid and sufficient grants, franchises, miscellaneous permits and easements free from unduly burdensome restrictions, adequate for the conduct of their respective businesses in the territories in which they are now conducting such businesses and the ownership of the respective properties now owned by them;
(iv) All material contracts to which the Company is a party and which are described or referred to in the Prospectus are valid and legally binding contracts of the Company, and, except as the validity thereof may be the subject of litigation referred to in the Prospectus, to the best of such counsel's knowledge, of the other parties thereto;
(v) All authorizations, approvals, consents or other orders of any governmental authority or agency required in connection with the authorization, issuance and sale of the Debentures by the Company pursuant to this Agreement have been obtained and continue in full force and effect;
(vi) The Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a valid and legally binding instrument in accordance with its terms, except as limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law);
(vii) The Debentures are in due and proper form, have been duly and validly authorized and executed by the Company and, when authenticated and delivered in accordance with the Indenture and paid for by the purchasers thereof in accordance with this Agreement, will constitute valid and legally binding agreements of the Company enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law); the Debentures have been listed (subject to official notice of issuance) on the New York Stock Exchange;
(viii) The Debentures and the Indenture conform to the descriptions thereof contained in the Registration Statement and Prospectus and the statements in the Registration Statement and Prospectus, recited therein as having been prepared or reviewed by such counsel, are true and correct;
(ix) This Agreement has been duly authorized, executed and delivered by the Company;
(x) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose shall have been initiated are pending before or shall threatened by the Commission, and the Registration Statement and Prospectus, and any amendment or supplement thereto (except as to financial statements and other -5- financial data contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Trust Indenture Act and the Rules and Regulations of the Commission under such Acts; and such counsel does not believe that at the date hereof or at the Closing Date either the Registration Statement or the Prospectus, or any such amendment or supplement, contains any untrue statement of a material fact or omits to state any material fact required to be pending orstated therein or necessary in order to make the statements therein not misleading;
(xi) The descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, and contracts and other documents are, to the Company's knowledgebest of the knowledge of such counsel, shall accurate and fairly present the information required to be contemplated by shown therein; and such counsel does not know of any legal or governmental proceedings required to be described in the SEC Prospectus which are not described as required or by any authority contracts or documents of a character required to be described in any jurisdiction designated by the Underwriter pursuant Registration Statement or Prospectus or to Section 5(f) hereof.be filed as exhibits to the Registration Statement which are not described or filed as required;
(bxii) All corporate proceedings The execution and other matters incident to the authorizationdelivery of, form and validity of compliance with, this Agreement, the Offered Shares Debentures and the form Indenture will not conflict with or constitute a breach of or default under the Articles of Incorporation or Bylaws of the Registration Statement and Company, any indenture, mortgage, deed of trust or other agreement or instrument known to such counsel by which the ProspectusCompany is bound, and or any applicable law, or to the best of his knowledge, any administrative regulation or court decree; and
(xiii) The Company is a "subsidiary company" of a "holding company" within the meaning of the PUHCA, which holding company is exempt from application of all provisions of the PUHCA except Section 9(a)(2) thereof. In rendering such opinion counsel may rely as to matters involving the laws of any jurisdiction other legal matters relating to this Agreement and than the transactions contemplated hereby State of Oregon, upon the opinion or opinions of such local counsel as shall be satisfactory in all material respects acceptable to you and counsel for the Underwriter. The Underwriters; and with respect to the opinions contemplated by clauses (i) and (ii) of paragraph (b) of this Section 5, upon advices from public officials as to the good standing of the Company and its subsidiaries.
(c) You shall have received from Morgan, Lewis & Bxxxxxx XXX, couxxxx xor the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the validity of the Debentures, the Indenture, including the Supplemental Indenture, the Registration Statement, the Prospectus and other related matters as you may require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for the purpose of enabling them to pass upon such matters. The Underwriter shall have received from In giving the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
opinions contemplated by paragraph (c) The NASD shall have indicated it has no objection of this Section 5, counsel may rely on certificates of responsible officers of the Company as to matters of fact and upon advice from state authorities as to the underwriting arrangements pertaining to the sales of any good standing of the Offered SharesCompany and its subsidiaries.
(d) The Underwriter You shall have received at or prior to a certificate, dated the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to signed by the Underwriter a signed opinion Chairman, President or any Vice President and the Treasurer or any Assistant Treasurer or the Controller of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretothat, or to such effect as is otherwise reasonably satisfactory to the Underwriter.best of their knowledge:
(f) At the Closing Date and on any Option Closing Date: (i) No stop order suspending the effectiveness of the Registration Statement is in effect and any post-effective amendment thereto and no proceedings for such purpose are pending before or threatened by the Prospectus and any amendments orCommission;
(ivii) since Since the respective dates as of which information is given in the Registration Statement and the Prospectus as supplemented on the date of this Agreement, there has not been any post-effective amendment thereto material adverse change in the condition of the Company and its subsidiaries, financial or otherwise, or in the results of operations of the Company and its subsidiaries, except as reflected in or contemplated by the Registration Statement and the Prospectus as supplemented on the date of this Agreement, and that except as so reflected or contemplated since such dates there has not been any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which transaction entered into by the Company or any of its subsidiaries, other than transactions in the Subsidiaries is a party, that has ordinary course of business;
(iii) The Company does not been, but would be required to be set forth have any material contingent obligations which are not disclosed in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.;
(giv) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of the Company in this Agreement herein are true and correct, as if made correct in all material respects at and as of the Closing Date or the Option Closing Date, as the case may be, and that the ; and
(v) The Company has complied with performed all the agreements, fulfilled all the covenants and satisfied all the conditions agreements herein contained to be performed on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or Date.
(e) You shall have received on the Option date hereof and on the Closing Date, from Arthur Andersen LLX, xxtxxxx xx form and substance satisfactory to you.
(f) All approvals and consents of the Public Utility Commission of Oregon required for the valid issuance and sale of the Debentures by the Company in accordance with the provisions of this Agreement shall have been obtained.
(g) Prior to the Closing Date and subsequent to the date of this Agreement, the Company shall not have sustained a substantial loss by fire, flood, accident or other calamity which, whether or not such loss shall have been insured, nor shall any regulatory authority having jurisdiction over the Company have made any materially adverse determination not described in the Prospectus which, in any of the above events, in your judgment renders it inadvisable to proceed with the delivery of the Debentures.
(h) The Company shall have furnished to you, in form and substance satisfactory to you and to counsel for the Underwriters, such other certificates and opinions as you may reasonably request with respect to the case may bematters contemplated herein.
(i) Subsequent to the date of this Agreement, and (i) trading on the New York Stock Exchange shall not have been suspended or limited by the New York Stock Exchange, Inc. or by order of the Commission or any other governmental authority having jurisdiction nor shall a general banking moratorium have been declared by Federal or New York authorities; (ii) the signers there shall not have been any suspension of trading of any securities of the certificate Company on any exchange or in the over-the-counter market; (iii) there shall not have carefully examined been an outbreak or escalation of hostilities between the Registration Statement and the Prospectus United States and any amendments foreign power, or supplements theretoof any other insurrection or armed conflict involving or affecting the United States, and or any substantial national or international calamity or emergency, if in your judgment, the conditions effect of any such outbreak, escalation, insurrection, conflict, calamity or emergency makes it impractical or inadvisable to proceed with completion of the delivery of the Debentures; (iv) the rating assigned by any nationally recognized securities rating agency to any debt securities or preferred stock of the Company -7- shall not have been lowered; or (v) except as set forth in the Prospectus first filed pursuant to Rule 424 under the Act after the date hereof, there shall not have been any material adverse change in the condition or prospects of the Company and its subsidiaries as a whole, financial or otherwise which, in any case, in your judgment, renders it inadvisable to proceed with delivery of the Debentures. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all material respects satisfactory to you and your counsel. In case any of the conditions specified above in this Section 7(g5 shall not have been fulfilled at the Closing Date, you may waive the compliance by the Company with any such condition, by mailing or delivering written notice thereof to the Company. If any condition of the Underwriters' obligations hereunder to be satisfied on or prior to the Closing Date is not so satisfied, you may terminate this Agreement without liability on the part of any Underwriter or of the Company, except for the expenses to be paid or reimbursed by the Company pursuant to Section 6(h) hereof have been satisfiedand except for any liability under Section 8 hereof.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives' reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorizationLeBoeuf, form and validity of this AgreementLamb, the Offered Shares and the form of the Registration Statement and the ProspectusGreene & MacRae LLP, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company Company, shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an yxx xxxir xxxxxxn opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect that:
(i) The Company is validly existing as a corporation in good standing under the laws of the Closing Date State of Delaware, with corporate power and any Option Closing Dateauthority to own or lease, as the case may be, and addressed to operate its properties and conduct its business as described in the Time of Sale Prospectus and the Final Prospectus;
(ii) This Agreement has been duly authorized, executed and delivered by the Company;
(iii) The Securities have been duly authorized, and (assuming their due authentication by the Trustee) have been duly executed, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the Underwriterbenefits provided by the Indenture, which opinion shall be satisfactory and the Securities and the Indenture conform in all material respects to the Underwriter.descriptions thereof in the Time of Sale Prospectus and the Final Prospectus;
(civ) The NASD shall have indicated it Indenture has no objection been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company, and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(v) The Registration Statement, the Time of Sale Prospectus and the Final Prospectus as amended or supplemented and any further amendments thereto made by the Company prior to such Time of Delivery for the Securities (in each case other than with respect to the underwriting arrangements pertaining financial statements, financial and accounting data and related schedules incorporated by reference or included therein or excluded therefrom, or the exhibits to the sales Registration Statement, including the Form T-1, as to which such counsel need express no opinion or belief), appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; provided that, such counsel shall not be deemed to be passing upon and shall not be required to assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, Time of Sale Prospectus and Final Prospectus;
(vi) The issue and sale of the Securities and the performance by the Company of its obligations under the Indenture, the Securities or this Agreement and the consummation by the Company of the transactions contemplated therein will not conflict with or result in a breach of any of the Offered Sharesprovisions of the Act, the Exchange Act, the Trust Indenture Act or the rules and regulations issued pursuant to each such act.
(dvii) The Underwriter shall have received at All consents, approvals, authorizations, orders, registrations, and qualifications of or prior to with any United States court or governmental agency or body required for the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering issue and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated Securities by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a partyconsummation by the Company of the transactions contemplated by this Agreement under the Act, the Exchange Act, the Trust Indenture Act or the rules and regulations issued pursuant to each such act have been obtained or made.
(viii) As such counsel, such counsel reviewed the Registration Statement, the Time of Sale Prospectus and the Final Prospectus as amended or supplemented, participated in discussions with representatives of the Underwriters and of the Company and its accountants at which contents of the Registration Statement, Time of Sale Prospectus and Final Prospectus as amended or supplemented and related matters were discussed; on the basis of the information that has such counsel gained in the course of the performance of their services referred to above, although such counsel shall not beenbe deemed to be passing upon and shall not assume any responsibility for, but would the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Prospectus or the Final Prospectus and shall not be required to be set forth have made an independent check or verification thereof (except as described in paragraph (iii) hereof), on the basis of the foregoing, no facts have come to the attention of such counsel in the course of such review which have caused such counsel to believe that, as of its effective date, the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and the financial and accounting data and related schedules incorporated by reference or included therein or excluded therefrom, or the Subsidiaries that would be exhibits to the Registration Statement, including the Form T-1, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be set forth in stated therein or necessary to make the Prospectus, other than as set forth therein, and no proceedings shall be pending statements therein not misleading or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
that (gi) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date hereof, the Time of Sale Prospectus (other than the financial statements and financial and accounting data and related schedules incorporated by reference or included therein or excluded therefrom, or the exhibits to the Registration Statement, including the Form T-1, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the Closing Date circumstances under which they were made not misleading or Option Closing Date(ii) as of its date or the Time of Delivery, the Final Prospectus as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of amended or supplemented or any further amendment or supplement thereto made by the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date Time of Delivery (other than the financial statements and financial and accounting data and related schedules incorporated by reference or included therein or excluded therefrom, or the Option Closing Dateexhibits to the Registration Statement, including the Form T-1, as to which such counsel need express no opinion) contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the case may bestatements therein, and (ii) the signers in light of the certificate have carefully examined circumstances under which they were made not misleading; and
(ix) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Registration Statement and the Prospectus and any amendments or supplements theretoInvestment Company Act of 1940, and the conditions set forth in Section 7(g) hereof have been satisfiedas amended.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives’ reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorizationLeBoeuf, form and validity of this AgreementLamb, the Offered Shares and the form of the Registration Statement and the ProspectusXxxxxx & XxxXxx LLP, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(c) Xxxx X. XxXxxx, Secretary and Deputy General Counsel of the Company and Vice President, Secretary and Deputy General Counsel of Allstate Insurance Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VII hereto.
(d) The Representatives shall have received from Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to signed by the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates Chairman of the Board, Chief Executive Officer and the Officer, President, Chief Operating Officer, Chief Financial Officer Officer, Secretary, General Counsel, Treasurer or Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VIII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VIII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the Underwriters, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for several Underwriters hereunder shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateUnderwriters, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein are, to at and as of the performance by Applicable Time and the Time of Delivery, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Delivery, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of under the Regulations 1933 Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the 1933 Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act related to the Closing Date or any Option Closing Dateoffering of the Securities, as shall have been filed with the case may be, SEC within the applicable time period prescribed for such filings by Rule 433; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the offering of the Securities shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated threatened by the SEC and no notice of objection of the SEC to the use of the Registration Statement or by any authority in post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any jurisdiction designated Issuer Free Writing Prospectus shall have been initiated or threatened by the Underwriter pursuant SEC; and all requests for additional information on the part of the SEC shall have been complied with to Section 5(f) hereofthe reasonable satisfaction of the Representatives.
(b) All corporate proceedings and other matters incident to At the authorizationTime of Delivery, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company Underwriters’ Counsel shall have furnished to the Representatives an opinion, dated such counsel all date, with respect to such matters as the Representatives may reasonably request, and Underwriters’ Counsel shall have received such documents and information that they as it may have reasonably requested request to enable them it to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as Underwriters’ Counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD At the Time of Delivery, Xxxxxx X. Xxxxx, Esq., Executive Vice President, General Counsel and Secretary of the Company, shall have indicated it has no objection furnished to the underwriting arrangements pertaining Representatives an opinion, dated such date, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of Underwriters’ Counsel, and (y) if the Pricing Disclosure Package shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesSecurities, with changes therein to reflect such supplementation.
(d) The Underwriter At the Time of Delivery, Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Company, shall have received at or prior furnished to the Closing Date from Underwriter's counsel a memorandum or summaryRepresentatives an opinion, dated such date, in the form attached as Exhibit B hereto, (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of Underwriters’ Counsel and (y) if the Pricing Disclosure Package shall be supplemented after being furnished to the Underwriters for use in offering the Securities, with changes therein to reflect such supplementation.
(e) On the date of this Agreement and at the Time of Delivery, the Accountants shall have furnished to the Representatives letters, dated as of such dates, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter consolidated financial statements of the Offered Shares under Company and its subsidiaries incorporated by reference in the securities or Blue Sky laws of such jurisdictions designated by Registration Statement, the Underwriter pursuant to Section 5(f) hereofPricing Prospectus and the Prospectus.
(ei) On Neither the Closing Date and Company nor any Option Closing Date, there of its subsidiaries shall have been delivered to sustained, since the Underwriter a signed opinion date of Shumaker Williamsthe most recent audited consolidated financial statements incorporated by reference in the Pricing Prospectus, P.C.any loss or interference with their business from fire, counsel to the Companyexplosion, dated as of each such xxxx xxd xxxxxxxed to the Underwriterflood or other calamity, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Pricing Prospectus, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoPricing Prospectus, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal consolidated results of any contract to which operations of the Company or the Subsidiaries is and its subsidiaries, taken as a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectuswhole, other than as set forth thereindisclosed or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and no proceedings shall be pending adverse as to make it impracticable or threatened against inadvisable to proceed with the public offering, sale or directly affecting delivery of the Company or Securities on the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effectterms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(g) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities, unless such surveillance or review has been publicly announced prior to the Applicable Time.
(h) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the SEC, the New York Stock Exchange or The Underwriter NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the SEC, the New York Stock Exchange or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(i) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that the Securities have received at least the ratings set forth in the Pricing Disclosure Package and that such ratings are in effect at the Closing Date and any Option Closing Date certificates Time of Delivery.
(j) The Company shall have complied with the provisions of Section 5(f) hereof with respect to the furnishing of the Chief Executive Officer Prospectus and each Issuer Free Writing Prospectus.
(k) At the Chief Financial Officer Time of Delivery, the Company shall have furnished or caused to be furnished to the Representatives a certificate or certificates, dated such date, of officers of the Company, dated as Company (one of which shall be the date of the Closing Date chief accounting or Option Closing Date, as the case may be, and addressed financial officer) satisfactory to the Underwriter, to the effect that (i) Representatives in which such officers shall state that: the representations and warranties of the Company in this Agreement and that are qualified by materiality are true and correctcorrect in all respects and the representations and warranties of the Company in this Agreement not qualified by materiality are true and correct in all material respects, as if made in each case, at and as of the Closing Date or the Option Closing DateTime of Delivery, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants agreements and has satisfied all the conditions on its part to be performed, fulfilled performed or satisfied hereunder at or prior to the Closing Date Time of Delivery and that, subsequent to the respective dates as of which information is given in the Pricing Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or consolidated results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as described in the Pricing Prospectus.
(l) At the Time of Delivery, Underwriters’ Counsel shall have been furnished with all such documents, certificates and opinions as Underwriters’ Counsel may reasonably request and that are customary for transactions of a similar nature, in order to evidence the accuracy and completeness of any of the representations, warranties, certificates or other written statements of the Company provided to the Representatives pursuant to this Agreement, the performance of any of the covenants of the Company, or the Option Closing Date, as the case may be, and (ii) the signers fulfillment of any of the certificate have carefully examined conditions herein contained. All proceedings taken by the Registration Statement Company at or prior to the Time of Delivery in connection with the authorization, issuance and sale of the Prospectus Securities as contemplated by this Agreement, including, without limitation, the execution of this Agreement, shall be reasonably satisfactory in form and substance to the Representatives and Underwriters’ Counsel. In case any amendments or supplements thereto, and of the conditions set forth specified above in this Section 8 shall not have been fulfilled, this Agreement may be terminated by the Representatives upon mailing or otherwise delivering written notice thereof to the Company. Any such termination shall be without liability of either party to the other party except as otherwise provided in Section 7(g) 7 hereof have been satisfiedand except for any liability under Section 9 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Ameren Corp)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase several Underwriters hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is will be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy and completeness of the representations and warranties made by the Fund, the Adviser and the Sub-Adviser contained in Section 1 herein as of the CompanyApplicable Time, the Closing Time and any Option Closing Time, to the due performance by the Company Fund and the Adviser of its covenants and their respective obligations hereunder, and to the continuing satisfaction (or waiver by the Underwriters in their sole discretion) of the following additional conditions:
(a) If The Registration Statement, including any Rule 462(d) Registration Statement, shall have become effective and all filings with the Commission required by Rule 497 under the Regulations, Securities Act to have been filed in connection with the Prospectus distribution of the Securities shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations made within the applicable time period prescribed for such filing by Rule 497.
(b) At the Regulations. On Closing Time, none of the following events shall have occurred and be continuing: (i) receipt by the Fund of any request for additional information from the Commission or prior 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 Closing Date Registration Statement, the Preliminary Prospectus or the Prospectus; (ii) the issuance by the Commission or any Option Closing Date, as the case may be, no other federal or state governmental authority of any stop order or other order preventing or suspending the effectiveness of the Registration Statement (or the initiation of any proceedings for that purpose, including any document incorporated notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Fund, threatened by reference thereinthe Commission; (iii) receipt by the Fund of any notification with respect to the suspension of the qualification or the sale exemption from qualification of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings Securities for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated by the SEC or by any authority sale in any jurisdiction designated by or the Underwriter pursuant initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement, the Preliminary Prospectus, the Disclosure Package or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement, the Preliminary Prospectus, the Disclosure Package or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to Section 5(fstate any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Preliminary Prospectus, the Disclosure Package and/or the 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) hereofthe Fund's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(bc) All corporate proceedings and other matters incident to The Underwriters shall not have advised the authorizationFund that the Registration Statement, form and validity of this AgreementPreliminary Prospectus, the Offered Shares Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of a material fact regarding the Underwriters that in the Underwriters' opinion is material, or omits to state a fact regarding the Underwriters that in the Underwriters' opinion is material and is required to be stated therein or is necessary to make the form statements therein, in light of the Registration Statement circumstances under which it was made, not misleading.
(d) At the Closing Time, there shall not have been any material change, on a consolidated basis, in the authorized capital stock of the Fund or any Fund Material Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect, or any development that may reasonably be expected to
cause a Fund Material Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Fund's debt or preferred securities by any rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of the Fund's debt or preferred securities, the effect of which, in the case of any such action by a rating organization described above, in the sole judgment of the Underwriters (without relieving the Fund of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering and sale of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(e) At the Closing Time, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter Underwriters shall have received from the Underwriter's counselfavorable opinions, an dated as of the Closing Time, of Chapman and Cutler LLP and Bingham McCutchen LLP, special Massachxxxxxx Fund xxxxxxl (collecxxxxxx, "Xxxx Xxxnsel"), in substantially the form attached hereto as Exhibit 5(e), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(f) At the Closing Time, the Underwriters shall have received the favorable opinion, dated as of the Closing Date Time, of Chapman and any Option Closing DateCutler LLP, as the case may be, and addressed counsel to the UnderwriterAdviser ("Adviser Counsel"), which opinion xx xubstaxxxxxxy the form attached hereto as Exhibit 5(f), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(g) At the Closing Time, the Underwriters shall be have received the favorable opinion, dated as of the Closing Time, of Dechert LLP, counsel to the Sub-Adviser ("Sub-Adviser Counsel"), in substantially the form attached hereto as Exhibit 5(g), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(h) At the Closing Time, the Underwriters shall have received the favorable opinion, dated as of the Closing Time, of Troutman Sanders LLP, counsel for the Underwriters.
(x) Xt xxx Xxosing Time, the Underwriters shall have received (1) certificates of the Chief Financial Officer or Chief Accounting Officer of the Fund, the Adviser and the Sub-Adviser, each dated as of the Closing Time, in the form attached hereto as Exhibit 5(i) and (2) certificates of the Secretary of the Fund, the Adviser and the Sub-Adviser, each dated as of the Closing, in form and substance reasonably satisfactory to the Underwriter.
(cj) The NASD shall have indicated it has no objection to At the underwriting arrangements pertaining to the sales of any time of the Offered Shares.
(d) The Underwriter execution of this Agreement, the Underwriters shall have received at or prior to the Closing Date from Underwriter's counsel Deloitte & Touche LLP a memorandum or summaryletter dated such date, in form and substance satisfactory to the UnderwriterUnderwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the qualification financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(k) At the Closing Time, the Underwriters shall have received from Deloitte & Touche LLP a letter dated as of the Closing Time, in form and substance satisfactory to the Underwriters, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(l) At the Closing Time, the Securities shall have been approved for offering listing on the NYSE Amex, subject only to official notice of issuance.
(m) At the time of the execution of this Agreement, the Company shall have procured for the benefit of the Underwriters lock-up agreements, in the form of Schedule C attached hereto, from the following Trustees of the Fund: Richard E. Erickson, Thomas R. Kadlec and sale Niel B. Nielson.
(x) Xx xxe xxxxx xxxx xxx Xnderwxxxxxx xxxxxxxx their option provided in Section 2(b) hereof to purchase all or any portion of the Over-Allotment Securities, the obligations of the several Underwriters to purchase the applicable Over-Allotment Securities shall be subject to the conditions specified in the introductory paragraph of this Section 5 and to the further condition that, at the applicable Option Closing Time, the Underwriters shall have received:
(1) Certificates, dated such Option Closing Time, to the effect set forth in Section 5(i) hereof, and signed by the Underwriter Chief Financial Officer or Chief Accounting Officer of the Offered Shares under Fund, the securities or Blue Sky laws Adviser and the Sub-Adviser, except that the references in such certificate to the Closing Time shall be changed to refer to such Option Closing Time.
(2) The favorable opinions of Fund Counsel, in form and substance satisfactory to counsel for the Underwriters, dated such jurisdictions designated Option Closing Time, relating to the Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(e) hereof.
(3) The favorable opinion of Adviser Counsel, in form and substance satisfactory to counsel for the Underwriter pursuant Underwriters, dated such Option Closing Time, relating to the Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(f) hereof.
(e4) On The favorable opinion of Sub-Adviser Counsel, in form and substance satisfactory to counsel for the Closing Date and any Underwriters, dated such Option Closing DateTime, there shall have been delivered relating to the Underwriter a signed Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(g) hereof.
(5) The favorable opinion of Shumaker Williams, P.C.Troutman Sanders LLP, counsel for the Underwriters, datex xxxx Xpxxxx Xxosing Time, relating to the Company, dated as of each Over-Allotment Securities to be purchased on such xxxx xxd xxxxxxxed Option Closing Time and otherwise to the Underwriter, to the effect set forth in Exhibit A hereto, or to such same effect as is otherwise reasonably the opinion required by Section 5(h) hereof.
(6) A letter from Deloitte & Touche LLP, in form and substance satisfactory to the Underwriter.
(f) At the Closing Date Underwriters and on any dated such Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given Time, substantially in the Registration Statement same form and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, substance as the case may be, and addressed letter furnished to the UnderwriterUnderwriters pursuant to Section 5(k) hereof, to the effect except that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfied.the
Appears in 1 contract
Samples: Underwriting Agreement (Energy Income & Growth Fund)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereofFirst Time of Delivery, on the Closing Date and on any Option Closing Date and, with respect to the continuing Optional Shares, any Second Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of such Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, Shares and the Prospectus Preferred Shares shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the applicable Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(c) Xxxx X. XxXxxx, Deputy General Counsel of the Company, shall have furnished to you her written opinion, dated the applicable Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VII hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the applicable Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Shares, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the applicable Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or applicable Time of Delivery with the Option Closing Date, same effect as if made on the case may be, applicable Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and applicable Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus or the Final Prospectus there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VIII hereto. As of the applicable Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the applicable Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VIII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been any decrease in the rating of any of the Company’s securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware.
(i) The Representatives shall have received from the Depositary a copy of the certificate evidencing the deposit of the Preferred Shares delivered at the applicable Time of Delivery.
(j) Prior to or at the applicable Time of Delivery, the Company shall have carefully examined furnished or shall furnish to the Registration Statement and Representatives such additional certificates of officers of the Prospectus and Company as to such other matters as the Representatives may reasonably request. If any amendments or supplements thereto, and of the conditions set forth specified in this Section 7(g) hereof 7 shall not have been satisfiedfulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the applicable Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the applicable Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date Time of Delivery shall be subject to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of such Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, Shares and the Prospectus Preferred Shares shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Xxxxxx Xxxxxx, Deputy General Counsel and Senior Vice President of Allstate Insurance Company, shall have furnished to you his written opinion, dated the Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Shares, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus or the Final Prospectus there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been any decrease in the rating of any of the Company’s securities by any of Xxxxx’x Investors Service Inc. or S&P Global Ratings, a division of S&P Global Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware.
(i) The Representatives shall have received from the Depositary a copy of the certificate evidencing the deposit of the Preferred Shares delivered at the Time of Delivery.
(j) Prior to or at the Time of Delivery, the Company shall have carefully examined furnished or shall furnish to the Registration Statement and Representatives such additional certificates of officers of the Prospectus and Company as to such other matters as the Representatives may reasonably request. If any amendments or supplements thereto, and of the conditions set forth specified in this Section 7(g) hereof 7 shall not have been satisfiedfulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation several obligations of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase Underwriters hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is are subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany on the date hereof and at the time of purchase (and the several obligations of the Underwriters at the additional time of purchase are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the time of purchase (unless previously waived) and at the additional time of purchase, to as the case may be), the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditionsconditions precedent:
(a) If required by The Company shall furnish to you at the Regulations, time of purchase and at the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) additional time of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Datepurchase, as the case may be, no stop order or other order preventing or suspending the effectiveness an opinion of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities lawXxxxxxxx & Worcester LLP, and no proceedings for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished Company, addressed to such counsel all documents the Underwriters, and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from dated the Underwriter's counsel, an opinion, dated as time of purchase or the Closing Date and any Option Closing Dateadditional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and addressed to the Underwriter, which opinion shall be in a form satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriter.Underwriters, stating that:
(ci) The NASD shall have indicated it has no objection the Company is duly qualified to the underwriting arrangements pertaining to the sales of any transact business and is in good standing in each of the Offered Shares.jurisdictions set forth on Schedule B hereto; each Subsidiary listed on Schedule C hereto (collectively, the "Delaware Subsidiaries") and each Subsidiary listed on Schedule D hereto (collectively, the "Maryland Subsidiaries") are each duly qualified as a foreign corporation or other legal entity and in good standing in each of the jurisdictions set forth on Schedule B hereto;
(dii) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summarythis Agreement has been duly authorized, in form executed and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale delivered by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated and is a legal, valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforcement of each such xxxx xxd xxxxxxxed the same may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles and except as to those provisions relating to indemnities for liabilities arising under the Underwriter, Act as to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.which no opinion need be expressed;
(f) At the Closing Date and on any Option Closing Date: (iiii) the Registration Statement and any post-effective amendment thereto and the Prospectus (except as to the financial statements and any amendments orschedules and other financial and statistical data contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act;
(iv) since the respective dates Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order proceedings with respect thereto are pending or threatened under the Act and any required filing of the Prospectus, and any supplement thereto pursuant to Rule 424 under the Act, has been made in the manner and within the time period required by such Rule 424;
(v) each Delaware Subsidiary is a corporation or other legal entity duly formed, existing and in good standing under the laws of its jurisdiction of organization. Each Delaware Subsidiary has the corporate, trust, partnership or other power to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact as of which information is given described in the Registration Statement and Prospectus. All of the issued and outstanding shares of beneficial ownership or shares of capital stock of, or other ownership interests in, each Delaware Subsidiary have been duly authorized and validly issued, are fully paid and except as to Delaware Subsidiaries that are limited liability companies or partnerships, non-assessable; and all issued and outstanding shares of beneficial ownership or shares of capital stock of, or other ownership interests in, each Delaware Subsidiary and each Maryland Subsidiary are owned by the Company, directly or through subsidiaries, free and clear of any post-effective amendment thereto security interest, mortgage, pledge, lien or encumbrance, except as disclosed in the Registration Statement and Prospectus;
(vi) the execution, delivery and performance of this Agreement by the Company and the Prospectus transactions contemplated hereby do not and will not result in a Default Event under (nor constitute any amendments event which with notice, lapse of time, or supplements theretoboth, there shall have been no material adverse changewould result in any breach of, lossor constitute a Default Event under) (A) any provisions of the charter or by-laws or other organizational documents of the Delaware Subsidiaries, reduction, termination or non-renewal (B) any provision of any contract agreement or other instrument to which the Company or any of the Delaware Subsidiaries is a party or by which their respective properties may be bound or affected, that is described in the Prospectus or filed as an exhibit to the Registration Statement or is otherwise known to such counsel, (C) any federal, state, local or foreign law, regulation or rule, or any decree, to which the Company or the Delaware Subsidiaries is may be subject, other than, in the case of clauses (B) and (C), such Default Events as would not, individually or in the aggregate, have a partyMaterial Adverse Effect;
(vii) to such counsel's knowledge, that has not beenthere are no contracts, but would be licenses, agreements, leases or documents of a character which are required to be set forth in filed as exhibits to the Registration Statement or Prospectus; and to be described in the Prospectus which have not been so filed or described;
(vviii) no actionto such counsel's knowledge, suit except as described in the Prospectus or proceeding at law as would not, individually or in equity shall be pending the aggregate, have a Material Adverse Effect, there are no private or governmental actions, suits, claims, investigations or proceedings pending, threatened against or contemplated to which the Company or any of the Delaware Subsidiaries that would be required to be set forth or any of their officers is subject or of which any of their properties is subject, whether at law, in the Prospectus, other than as set forth therein, and no proceedings shall be pending equity or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state state, local or foreign governmental or regulatory commission, board, body, authority or agency;
(ix) to such counsel's knowledge, no person has the right, pursuant to the terms of any contract, agreement or other commissioninstrument described in or filed as an exhibit to the Registration Statement, board to cause the Company to register under the Act any shares of beneficial interest or administrative agency wherein an unfavorable decision, ruling or finding would have other equity interests as a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates result of the Chief Executive Officer filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated hereby, except for such rights as have been complied with or waived; and to the Chief Financial Officer knowledge of such counsel, except as described in the Registration Statement and Prospectus, no person is entitled to registration rights with respect to shares of capital stock or other securities of the Company;
(x) the Company is not, dated as and after the offering and sale of the date of the Closing Date or Option Closing DateShares, as the case may will not be, and addressed an "investment company," or an entity controlled by an "investment company," as such terms are defined in the Investment Company Act; and
(xi) to such counsel's knowledge the Underwriter, to the effect that (i) the representations and warranties of the Company statements in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus under the captions "Business - Our lease for the 56 facilities", "Business - Our lease for the Marriott facilities", "Business - Government regulation and any amendments or supplements theretorate setting", and the conditions set forth in Section 7(g) hereof have been satisfied."Business - Environmental matters", "Management - Our shared services
Appears in 1 contract
Samples: Underwriting Agreement (Five Star Quality Care Inc)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Xxxxxxx X. Xxx, Esq., Vice President and Deputy General Counsel of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Xxxxxx, Xxxxx & Xxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter On the date of the Pricing Agreement for such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have received at or prior furnished to the Closing Date from Underwriter's counsel Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in Section 7(g8(a) and Section 8(e) hereof and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Samples: Underwriting Agreement (Ameren Corp)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date Time of Delivery shall be subject to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of such Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, Shares and the Prospectus Preferred Shares shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationWxxxxxx Xxxx & Gxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Sxxxx X. Xxxx, Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Mxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Shares, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus or the Final Prospectus there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been any decrease in the rating of any of the Company’s securities by any of Mxxxx’x Investors Service Inc. or S&P Global Ratings, a division of S&P Global Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware.
(i) The Representatives shall have received from the Depositary a copy of the certificate evidencing the deposit of the Preferred Shares delivered at the Time of Delivery.
(j) Prior to or at the Time of Delivery, the Company shall have carefully examined furnished or shall furnish to the Registration Statement and Representatives such additional certificates of officers of the Prospectus and Company as to such other matters as the Representatives may reasonably request. If any amendments or supplements thereto, and of the conditions set forth specified in this Section 7(g) hereof 7 shall not have been satisfiedfulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Mxxxx Xxxxx LLP, counsel to the Underwriters, at 71 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date Time of Delivery shall be subject to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of such Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, Shares and the Prospectus Preferred Shares shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Xxxxx X. Xxxx, Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Shares, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Shares, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus or the Final Prospectus there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been any decrease in the rating of any of the Company’s securities by any of Xxxxx’x Investors Service Inc. or S&P Global Ratings, a division of S&P Global Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware.
(i) The Representatives shall have received from the Depositary a copy of the certificate evidencing the deposit of the Preferred Shares delivered at the Time of Delivery.
(j) Prior to or at the Time of Delivery, the Company shall have carefully examined furnished or shall furnish to the Registration Statement and Representatives such additional certificates of officers of the Prospectus and Company as to such other matters as the Representatives may reasonably request. If any amendments or supplements thereto, and of the conditions set forth specified in this Section 7(g) hereof 7 shall not have been satisfiedfulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives’ reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorizationXxxxx & XxXxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(c) Xxxx X. XxXxxx, Secretary and Deputy General Counsel of the Company and Vice President, Secretary and Deputy General Counsel of Allstate Insurance Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VII hereto.
(d) The Representatives shall have received from Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to signed by the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates Chairman of the Board, Chief Executive Officer and the Officer, President, Chief Operating Officer, Chief Financial Officer Officer, Secretary, General Counsel, Treasurer or Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VIII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VIII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the Underwriters, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Xxxxx X. Xxx, Vice President, Deputy General Counsel, and Secretary of the Company, shall have furnished to you his written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service, Inc. or S&P Global Ratings, a division of S&P Global Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for several Underwriters hereunder shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateUnderwriters, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein are, to at and as of the performance by Applicable Time and the Time of Delivery, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed, at and obligations hereunderas of the Time of Delivery, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of under the Regulations 1933 Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the 1933 Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act related to the Closing Date or any Option Closing Dateoffering of the Securities, as shall have been filed with the case may be, SEC within the applicable time period prescribed for such filings by Rule 433; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the offering of the Securities shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated threatened by the SEC and no notice of objection of the SEC to the use of the Registration Statement or by any authority in post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any jurisdiction designated Issuer Free Writing Prospectus shall have been initiated or threatened by the Underwriter pursuant SEC; and all requests for additional information on the part of the SEC shall have been complied with to Section 5(f) hereofthe reasonable satisfaction of the Representatives.
(b) All corporate proceedings and other matters incident to At the authorizationTime of Delivery, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company Underwriters’ Counsel shall have furnished to the Representatives an opinion, dated such counsel all date, with respect to such matters as the Representatives may reasonably request, and Underwriters’ Counsel shall have received such documents and information that they as it may have reasonably requested request to enable them it to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as Underwriters’ Counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD At the Time of Delivery, Xxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, shall have indicated it has no objection furnished to the underwriting arrangements pertaining Representatives an opinion, dated such date, in the form attached as Exhibit A hereto, (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of Underwriters’ Counsel and (y) if the Pricing Disclosure Package shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesSecurities, with changes therein to reflect such supplementation.
(d) The Underwriter At the Time of Delivery, Xxxxxx, Xxxxx & Bockius LLP, counsel to the Company, shall have received at or prior furnished to the Closing Date from Underwriter's counsel a memorandum or summaryRepresentatives an opinion, dated such date, in the form attached as Exhibit B hereto, (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of Underwriters’ Counsel and (y) if the Pricing Disclosure Package shall be supplemented after being furnished to the Underwriters for use in offering the Securities, with changes therein to reflect such supplementation.
(e) On the date of this Agreement and at the Time of Delivery, the Accountants shall have furnished to the Representatives letters, dated as of such dates, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter consolidated financial statements of the Offered Shares under Company and its subsidiaries incorporated by reference in the securities or Blue Sky laws of such jurisdictions designated by Registration Statement, the Underwriter pursuant to Section 5(f) hereofPricing Prospectus and the Prospectus.
(ei) On Neither the Closing Date and Company nor any Option Closing Date, there of its subsidiaries shall have been delivered to sustained, since the Underwriter a signed opinion date of Shumaker Williamsthe most recent audited consolidated financial statements included or incorporated by reference in the Pricing Prospectus, P.C.any loss or interference with their business from fire, counsel to the Companyexplosion, dated as of each such xxxx xxd xxxxxxxed to the Underwriterflood or other calamity, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed in the Underwriter.
Pricing Prospectus, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoPricing Prospectus, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal consolidated results of any contract to which operations of the Company or the Subsidiaries is and its subsidiaries, taken as a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectuswhole, other than as set forth thereindisclosed or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and no proceedings shall be pending adverse as to make it impracticable or threatened against inadvisable to proceed with the public offering, sale or directly affecting delivery of the Company or Securities on the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effectterms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(g) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities, unless such surveillance or review has been publicly announced prior to the Applicable Time.
(h) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the SEC, the New York Stock Exchange or The Underwriter NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the SEC, the New York Stock Exchange or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(i) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that the Securities have received at least the ratings set forth in the Pricing Disclosure Package and that such ratings are in effect at the Closing Date and any Option Closing Date certificates Time of Delivery.
(j) The Company shall have complied with the provisions of Section 5(f) hereof with respect to the furnishing of the Chief Executive Officer Prospectus and each Issuer Free Writing Prospectus.
(k) At the Chief Financial Officer Time of Delivery, the Company shall have furnished or caused to be furnished to the Representatives a certificate or certificates, dated such date, of officers of the Company, dated as Company (one of which shall be the date of the Closing Date chief accounting or Option Closing Date, as the case may be, and addressed financial officer) satisfactory to the Underwriter, to the effect that (i) Representatives in which such officers shall state that: the representations and warranties of the Company in this Agreement and that are qualified by materiality are true and correctcorrect in all respects and the representations and warranties of the Company in this Agreement not qualified by materiality are true and correct in all material respects, as if made in each case, at and as of the Closing Date or the Option Closing DateTime of Delivery, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants agreements and has satisfied all the conditions on its part to be performed, fulfilled performed or satisfied hereunder at or prior to the Closing Date Time of Delivery and that, subsequent to the respective dates as of which information is given in the Pricing Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or consolidated results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as described in the Pricing Prospectus.
(l) At the Time of Delivery, Underwriters’ Counsel shall have been furnished with all such documents, certificates and opinions as Underwriters’ Counsel may reasonably request and that are customary for transactions of a similar nature, in order to evidence the accuracy and completeness of any of the representations, warranties, certificates or other written statements of the Company provided to the Representatives pursuant to this Agreement, the performance of any of the covenants of the Company, or the Option Closing Date, as the case may be, and (ii) the signers fulfillment of any of the certificate have carefully examined conditions herein contained. All proceedings taken by the Registration Statement Company at or prior to the Time of Delivery in connection with the authorization, issuance and sale of the Prospectus Securities as contemplated by this Agreement, including, without limitation, the execution of this Agreement, shall be reasonably satisfactory in form and substance to the Representatives and Underwriters’ Counsel. In case any amendments or supplements thereto, and of the conditions set forth specified above in this Section 8 shall not have been fulfilled, this Agreement may be terminated by the Representatives upon mailing or otherwise delivering written notice thereof to the Company. Any such termination shall be without liability of either party to the other party except as otherwise provided in Section 7(g) 7 hereof have been satisfiedand except for any liability under Section 9 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Ameren Corp)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters hereunder with respect to purchase and pay for any sale of Placement Trust Units will be subject to the Firm Shares that it has agreed completion by the Underwriters of a due diligence review satisfactory to purchase hereunder on the Closing DateUnderwriters in their reasonable judgment, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy satisfaction (or waiver by both the Underwriters, in their sole discretion) of the representations and warranties of the Company, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, Shelf Prospectus Supplement in relation to the applicable Placement Trust Units shall have been filed with the Qualifying Authorities under the Shelf Procedures; and the U.S. Shelf Prospectus Supplement shall have been filed with the SEC pursuant to Rule 424(b) General Instruction II.L. of Form F-10 under the Regulations Securities Act, in each case, within the applicable time period prescribed for such filing by and in accordance with Section 9.1(a) hereof; and all requests for additional information on the Regulations. On or prior part of the Qualifying Authorities and the SEC shall have been complied with to the Closing Date reasonable satisfaction of counsel to the Underwriters;
(b) no Prospectus, U.S. Prospectus or any Option Closing Date, as the case may be, no stop order amendment or other order preventing or suspending the effectiveness of supplement to the Registration Statement (Statement, the Prospectus or the U.S. Prospectus, including any document documents deemed to be incorporated by reference therein, shall have been filed to which the Underwriters, acting reasonably, object;
(c) at the Applicable Time and at the Settlement Date for such Placement Trust Units:
(i) no stop order preventing, suspending or objecting to the use of the Registration Statement, the Prospectus or the sale of U.S. Prospectus or any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated threatened by the SEC Qualifying Authorities or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.SEC; and
(bii) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales order of any of the Offered Shares.Qualifying Authorities or the SEC to cease distribution of the Designated Units shall have been issued, and no proceedings for such purpose shall have been instituted or threatened;
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter all of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) the representations and warranties of the Company Trust and the Corporation contained in this Agreement are shall be true and correctcorrect on each Representation Date, with the same force and effect as if made at on and as of the Closing Date or the Option Closing such Representation Date, as and the case may be, and that the Company has Trust shall have complied with all the agreements, fulfilled agreements and all the covenants and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied hereunder at or, prior to such Representation Date;
(e) the Underwriters shall have received the certificates required to be delivered pursuant to Section 9.2 on or before the date on which delivery of such certificate is required pursuant to Section 9.2;
(f) the Underwriters shall have received the opinions of Trust Counsel and U.S. Trust Counsel required to be delivered pursuant Section 9.3 on or before the date on which delivery of such opinion is required pursuant to Section 9.3;
(g) the Underwriters shall have received the translation opinions required to be delivered pursuant Section 9.4 on or before the date on which delivery of such letter is required pursuant to Section 9.4;
(h) the Underwriters shall have received the Auditor Comfort Letter required to be delivered pursuant Section 9.5 on or before the date on which delivery of such letter is required pursuant to Section 9.5;
(i) the Underwriters shall have received the Other Comfort Letter required to be delivered pursuant Section 9.6 on or before the date on which delivery of such letter is required pursuant to Section 9.6;
(j) the Underwriters shall have received the Engineers Letter required to be delivered pursuant to Section 9.7 on or before the date on which delivery of such Engineers Letter is required pursuant to Section 9.7;
(k) the Trust shall have complied with the provisions of Section 9.1(q) hereof with respect to the furnishing of prospectuses;
(l) the Designated Units shall have been (i) listed and admitted and authorized for trading, subject to notice of issuance, on a national stock exchange in the United States and (ii) conditionally approved for listing on the TSX, and satisfactory evidence of such actions shall have been provided to the Underwriters;
(m) the Trust shall have furnished to the Underwriters and their counsel such other documents and certificates as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Trust Units as herein contemplated or in order to evidence the accuracy of any of the representations or warranties or the fulfillment of any of the conditions herein contained or to the accuracy and completeness of any statement in the Registration Statement or the Prospectuses as of the Settlement Date;
(n) on or prior to the Closing Date or date that the Option Closing first Designated Units are sold, and within 3 Trading Days after each Representation Date, the Underwriters shall have received from (i) Blake, Cxxxxxx & Gxxxxxx LLP, Canadian counsel for the Underwriters, such opinion or opinions with respect to the Prospectus and other related matters as the case Underwriters may be, require and (ii) Vxxxxx & Exxxxx LLP, U.S. counsel for the signers of the certificate have carefully examined Underwriters, such opinion or opinions with respect to the Registration Statement and the U.S. Prospectus and other related matters as the Underwriters may require;
(o) there shall not have occurred any amendments event that would permit the Underwriters to terminate this Agreement pursuant to Section 15(a); and
(p) the Underwriters shall have received satisfactory evidence of the acceptance by CT Corporation System of its appointment as the authorized agent to accept any and all process which may be served in any suit, action or supplements theretoproceeding on the Trust relating to this Agreement; and
(q) the Decision is in full force and effect, and the conditions set forth in Section 7(g) hereof have been satisfiedunamended.
Appears in 1 contract
Samples: Equity Distribution Agreement (Pengrowth Energy Trust)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters hereunder with respect to purchase and pay for any sale of Placement Securities will be subject to the Firm Shares that it has agreed completion by the Underwriters of a due diligence review satisfactory to purchase hereunder on the Closing DateUnderwriters in their reasonable judgment, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy satisfaction (or waiver by both the Underwriters, in their sole discretion) of the representations and warranties of the Company, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(ai) If required by the Regulations, Canadian Prospectus Supplement in relation to the applicable Placement Securities shall have been filed with the Qualifying Authorities under the Shelf Procedures; and
(ii) the U.S. Prospectus Supplement in relation to the applicable Placement Securities shall have been filed with the SEC pursuant to Rule 424(b) General Instruction II.L. of Form F-10 under the Regulations Securities Act, in each case, within the applicable time period prescribed for such filing by and in accordance with Section 7.1(a) hereof; and all requests for additional information on the Regulations. On or prior part of the Qualifying Authorities and the SEC shall have been complied with to the Closing Date reasonable satisfaction of counsel to the Underwriters;
(b) no Canadian Prospectus, U.S. Prospectus or any Option Closing Date, as the case may be, no stop order amendment or other order preventing or suspending the effectiveness of supplement to the Registration Statement (Statement, the Canadian Prospectus or the U.S. Prospectus, including any document documents deemed to be incorporated by reference therein, shall have been filed to which the Underwriters, acting reasonably, object;
(c) at the Applicable Time and at the Settlement Date for such Placement Securities:
(i) no stop order preventing, suspending or objecting to the use of the Registration Statement, the Canadian Prospectus or the sale of U.S. Prospectus or any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated threatened by the SEC Qualifying Authorities or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.SEC; and
(bii) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales order of any of the Offered Shares.Qualifying Authorities or the SEC to cease distribution of the Designated Securities shall have been issued, and no proceedings for such purpose shall have been instituted or threatened;
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i) all the representations and warranties of the Company Issuer and Penn West contained in this Agreement are shall be true and correctcorrect on each Representation Date, with the same force and effect as if made at on and as of the Closing Date or the Option Closing such Representation Date, as and the case may be, and that the Company has Issuer shall have complied with all the agreements, fulfilled agreements and all the covenants and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied hereunder at or, prior to such Representation Date;
(e) the Underwriters shall have received the opinions of Issuer Counsel and United States Issuer Counsel required to be delivered pursuant Section 7.3 on or before the date on which delivery of such opinion is required pursuant to Section 7.3;
(f) the Underwriters shall have received the Auditor Comfort Letters and the Other Comfort Letters required to be delivered pursuant Sections 7.5 and 7.6 on or before the date on which delivery of such letters is required pursuant to Sections 7.5 and 7.6;
(g) the Underwriters shall have received the certificate required to be delivered pursuant to Section 7.2 on or before the date on which delivery of such certificate is required pursuant to Section 7.2;
(h) the Issuer shall have complied with the provisions of Section 7.1(m) hereof;
(i) the Designated Securities shall have been (i) listed and admitted and authorized for trading on the NYSE and (ii) conditionally approved for listing on the TSX, and satisfactory evidence of such actions shall have been provided to the Underwriters;
(j) the Issuer shall have furnished to the Underwriters and their counsel such other documents and certificates as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Placement Securities as herein contemplated or in order to evidence the accuracy of any of the representations or warranties or the fulfillment of any of the conditions herein contained or to the accuracy and completeness of any statement in the Registration Statement, the U.S. Prospectus or the Canadian Prospectus as of the Settlement Date;
(k) on or prior to the Closing Date date that the first Securities are sold pursuant to the terms of this Agreement, and within three Trading Days after each date on which the Issuer is or becomes obligated to deliver a certificate pursuant to Section 7.2 hereof for which no waiver is applicable, the Option Closing DateUnderwriters shall have received from (i) Blake, Xxxxxxx & Xxxxxxx LLP, Canadian counsel for the Underwriters, such opinion or opinions with respect to the Canadian Prospectus and other related matters as the case Underwriters may be, require and (ii) Shearman & Sterling LLP, U.S. counsel for the signers of the certificate have carefully examined Underwriters, such opinion or opinions with respect the Registration Statement and the U.S. Prospectus and other related matters as the Underwriters may require;
(l) none of the Issuer, Penn West or any amendments Significant Subsidiary is required to register as an investment company pursuant to the United States Investment Company Act of 1940, as amended;
(m) the MRRS Decision remains in full force and effect and is not amended;
(n) there shall not have occurred any event that would permit the Underwriters to terminate this Agreement pursuant to Section 11(a); and
(o) the Underwriters shall have received satisfactory evidence of the acceptance by DL Services Inc. of its appointment as the authorized agent to accept any and all process which may be served in any suit, action or supplements thereto, and proceeding on the conditions set forth in Section 7(g) hereof have been satisfiedIssuer relating to this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Penn West Energy Trust)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase several Underwriters hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is will be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy and completeness of the representations and warranties made by the Fund, the Adviser and the Sub-Adviser contained in Section 1 herein as of the CompanyApplicable Time, the Closing Time and any Option Closing Time, to the due performance by the Company Fund and the Adviser of its covenants and their respective obligations hereunder, and to the continuing satisfaction (or waiver by the Underwriters in their sole discretion) of the following additional conditions:
(a) If The Registration Statement, including any Rule 462(d) Registration Statement, shall have become effective and all filings with the Commission required by Rule 497 under the Regulations, Securities Act to have been filed in connection with the Prospectus distribution of the Securities shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations made within the applicable time period prescribed for such filing by Rule 497.
(b) At the Regulations. On Closing Time, none of the following events shall have occurred and be continuing: (i) receipt by the Fund of any request for additional information from the Commission or prior 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 Closing Date Registration Statement, the Preliminary Prospectus or the Prospectus; (ii) the issuance by the Commission or any Option Closing Date, as the case may be, no other federal or state governmental authority of any stop order or other order preventing or suspending the effectiveness of the Registration Statement (or the initiation of any proceedings for that purpose, including any document incorporated notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Fund, threatened by reference thereinthe Commission; (iii) receipt by the Fund of any notification with respect to the suspension of the qualification or the sale exemption from qualification of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings Securities for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated by the SEC or by any authority sale in any jurisdiction designated by or the Underwriter pursuant initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement, the Preliminary Prospectus, the Disclosure Package or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement, the Preliminary Prospectus, the Disclosure Package or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to Section 5(fstate any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Preliminary Prospectus, the Disclosure Package and/or the 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) hereofthe Fund's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(bc) All corporate proceedings and other matters incident to The Underwriters shall not have advised the authorizationFund that the Registration Statement, form and validity of this AgreementPreliminary Prospectus, the Offered Shares Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of a material fact regarding the Underwriters that in the Underwriters' opinion is material, or omits to state a fact regarding the Underwriters that in the Underwriters' opinion is material and is required to be stated therein or is necessary to make the form statements therein, in light of the Registration Statement circumstances under which it was made, not misleading.
(d) At the Closing Time, there shall not have been any material change in the authorized capital stock of the Fund or any Fund Material Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect, or any development that may reasonably be expected to cause a Fund Material Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Fund's debt or preferred securities by any rating organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of the Fund's debt or preferred securities, the effect of which, in the case of any such action by a rating organization described above, in the sole judgment of the Underwriters (without relieving the Fund of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering and sale of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(e) At the Closing Time, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. The Company shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter Underwriters shall have received from the Underwriter's counselfavorable opinions, an dated as of the Closing Time, of Chapman and Cutler LLP and Bixxxxx McCutchen LLP, spexxxx Xxsxxxxxxxxxs Fund counsel (collectively, "Fund Counsel"), in substantially the form attached hereto as Exhibit 5(e), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(f) At the Closing Time, the Underwriters shall have received the favorable opinion, dated as of the Closing Date Time, of Chapman and any Option Closing DateCutler LLP, counsxx xx the Adviser ("Adviser Counsel"), in substantially the form attached hereto as Exhibit 5(f), together with signed or reproduced copies of such letters for each of the case may beother Underwriters, and addressed to such further effect as counsel to the UnderwriterUnderwriters may reasonably request.
(g) At the Closing Time, which opinion the Underwriters shall be have received the favorable opinion, dated as of the Closing Time, of Dechert LLP, counsel to the Sub-Adviser ("Sub-Adviser Counsel"), in substantially the form attached hereto as Exhibit 5(g), together with signed or reproduced copies of such letters for each of the other Underwriters, to such further effect as counsel to the Underwriters may reasonably request.
(h) At the Closing Time, the Underwriters shall have received the favorable opinion, dated as of the Closing Time, of Troutman Sanders LLP, counxxx xxx the Underwriters.
(i) At the Closing Time, the Underwriters shall have received (1) certificates of the Chief Financial Officer or Chief Accounting Officer of the Fund, the Adviser and the Sub-Adviser, each dated as of the Closing Time, in the form attached hereto as Exhibit 5(i) and (2) certificates of the Secretary of the Fund, the Adviser and the Sub-Adviser, each dated as of the Closing, in form and substance reasonably satisfactory to the Underwriter.
(cj) The NASD shall have indicated it has no objection to At the underwriting arrangements pertaining to the sales of any time of the Offered Shares.
(d) The Underwriter execution of this Agreement, the Underwriters shall have received at or prior to the Closing Date from Underwriter's counsel Deloitte & Touche LLP a memorandum or summaryletter dated such date, in form and substance satisfactory to the UnderwriterUnderwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the qualification financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(k) At the Closing Time, the Underwriters shall have received from Deloitte & Touche LLP a letter dated as of the Closing Time, in form and substance satisfactory to the Underwriters, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(l) At the Closing Time, the Securities shall have been approved for offering listing on the NYSE Amex, subject only to official notice of issuance.
(m) At the time of the execution of this Agreement, the Company shall have procured for the benefit of the Underwriters lock-up agreements, in the form of Schedule C attached hereto, from the following Trustees of the Fund: Richard E. Erickson, Thomax X. Xxxxxx xxx Xxxl X. Xxxxxxx.
(x) Xx xxx xxxxx xhat the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Over-Allotment Securities, the obligations of the several Underwriters to purchase the applicable Over-Allotment Securities shall be subject to the conditions specified in the introductory paragraph of this Section 5 and sale to the further condition that, at the applicable Option Closing Time, the Underwriters shall have received:
(1) Certificates, dated such Option Closing Time, to the effect set forth in Section 5(i) hereof, and signed by the Underwriter Chief Financial Officer or Chief Accounting Officer of the Offered Shares under Fund, the securities or Blue Sky laws Adviser and the Sub-Adviser, except that the references in such certificate to the Closing Time shall be changed to refer to such Option Closing Time.
(2) The favorable opinions of Fund Counsel, in form and substance satisfactory to counsel for the Underwriters, dated such jurisdictions designated Option Closing Time, relating to the Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(e) hereof.
(3) The favorable opinion of Adviser Counsel, in form and substance satisfactory to counsel for the Underwriter pursuant Underwriters, dated such Option Closing Time, relating to the Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(f) hereof.
(e4) On The favorable opinion of Sub-Adviser Counsel, in form and substance satisfactory to counsel for the Closing Date and any Underwriters, dated such Option Closing DateTime, there shall have been delivered relating to the Underwriter a signed Over-Allotment Securities to be purchased on such Option Closing Time and otherwise to the same effect as the opinion required by Section 5(g) hereof.
(5) The favorable opinion of Shumaker WilliamsTroutman Sanders LLP, P.C.counxxx xxx txx Underwriters, counsel dated such Option Closing Time, relating to the Company, dated as of each Over-Allotment Securities to be purchased on such xxxx xxd xxxxxxxed Option Closing Time and otherwise to the Underwriter, to the effect set forth in Exhibit A hereto, or to such same effect as is otherwise reasonably the opinion required by Section 5(h) hereof.
(6) A letter from Deloitte & Touche LLP, in form and substance satisfactory to the Underwriter.
(f) At the Closing Date Underwriters and on any dated such Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given Time, substantially in the Registration Statement same form and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, substance as the case may be, and addressed letter furnished to the UnderwriterUnderwriters pursuant to Section 5(k) hereof, to the effect except that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfied.the
Appears in 1 contract
Samples: Underwriting Agreement (Energy Income & Growth Fund)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxxx X. Xxxxx, Esq., Executive Vice President, General Counsel and Secretary of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter consolidated financial statements of the Offered Shares under Company and its subsidiaries incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On Neither the Closing Date and Company nor any Option Closing Date, there of its subsidiaries shall have been delivered to sustained, since the Underwriter a signed opinion date of Shumaker Williamsthe most recent audited consolidated financial statements incorporated by reference in the Time of Sale Information, P.C.any loss or interference with its business from fire, counsel to the Companyexplosion, dated as of each such xxxx xxd xxxxxxxed to the Underwriterflood or other calamity, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal consolidated results of any contract to which operations of the Company and its subsidiaries, taken as a whole, other than as disclosed or contemplated in the Subsidiaries Time of Sale Information, the effect of which, in any such case described in clause (i) or (ii), is a partyin the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The Nasdaq Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The Nasdaq Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Xxxxx X. Xxxx, Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service Inc. or S&P Global Ratings, a division of S&P Global Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, an affiliate which provides legal and other professional services to the underwriting arrangements pertaining Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of any counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the Offered SharesUnderwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is this Agreement are subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy satisfaction of each of the following Conditions:
(a) All the representations and warranties of the CompanyCompany contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. All agreements of the Company set forth in Sections 5(a) through 5(g) and Sections 5(i), 5(l) and 5(m) of this Agreement that are required to the performance be performed or complied with by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On at or prior to the Closing Date shall have been performed or any Option complied with by the Company at or prior to the Closing Date. The Company shall have performed or complied in all material respects with all of its agreements herein contained (other than those referenced in the immediately preceding Sentence) and required to be performed or complied with by it at or prior to the Closing Date.
(i) The Registration Statement shall be effective on the date hereof, or if a post-effective amendment is required to be filed under the Act, such post-effective amendment shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall have become effective) not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as you may approve in writing and, at the case may beClosing Date, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that purpose shall have been initiated commenced or shall be pending or, to the Company's knowledge, shall be contemplated before or threatened by the SEC or by any authority Commission, (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects, and (iii) no stop order suspending the sale of the Shares in any jurisdiction designated by referred to in Section 5(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to market the Underwriter pursuant Shares or to Section 5(f) hereofenforce contracts for the sale of the Shares.
(bi) All corporate proceedings and other matters incident to Since the authorization, form and validity date of this Agreement, the Offered Shares and the form of latest balance sheet included in the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement there shall not have been any Material Adverse Change, whether or not arising in the ordinary course of business, (ii) since the date of the latest balance sheet included in the Registration Statement and the transactions contemplated hereby Prospectus, there shall be satisfactory not have been any material adverse change, or any development involving a prospective material adverse change, in all the capital stock or long-term debt, or any material respects to counsel for increase in short-term debt, of the Underwriter. The Company or any of its Subsidiaries and (iii) the Company and its Subsidiaries shall have furnished to such counsel all documents and information no liability or obligation, direct or contingent, that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed is material to the Underwriter, Company and its Subsidiaries taken as a whole and is required to be disclosed in the notes to its financial statements in accordance with GAAP and which opinion shall be satisfactory to is not so disclosed in or incorporated by reference into the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered SharesRegistration statement.
(d) The Underwriter You shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter certificate of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and Date, executed on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as behalf of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company confirming the matters set forth in paragraphs (a), (b) and (c) of this Section 9.
(e) You shall have received an opinion (satisfactory to you and your counsel), dated the Closing Date, of McGlinchey Stafford, a Professionxx Xxxxxxx Xxability Company, counsel for the Company, to the effect that:
(i) (A) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and (B) has the corporate power and authority to own and lease its properties and to conduct its business as described in the Prospectus;
(ii) the Company has the corporate power and authority to enter into and perform this Agreement and to issue, sell and deliver the Shares; this Agreement has been duly and validly authorized by all necessary corporate action by the Company, and have been duly executed and delivered by the Company;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the "Description of Capital Stock" section of the Registration Statement and the Prospectus;
(iv) the Shares have been duly authorized for issuance and sale to the Underwriter pursuant to this Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) neither the issuance and sale of the Shares, nor the performance of the Company's obligations pursuant to this Agreement will (A) conflict with, result in a breach of, or constitute a default under the terms of any Louisiana statute, rule or regulation to which the Company or any of its properties is subject Company or (B) violate any of the provisions of the charter or by-laws of the Company as in effect on the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that opinion;
(ivii) the representations articles of incorporation and warranties bylaws of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior conform to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined descriptions thereof contained in the Registration Statement and the Prospectus and any amendments the provisions of Louisiana law described in the Registration Statement and the Prospectus conform to the descriptions thereof contained in the Registration Statement and the Prospectus.
(f) You shall have received an opinion (satisfactory to you and your counsel), dated the Closing Date, of Baker & McKenzie and Brons & Salax, Xxxxxxxlan axx Xxgenxxxx counsel for the Company, respectively, to the effect that:
(i) Each of Pride International, C.A., Perforaciones Quitral-Co de Venezuela, S.A. and Pride International, S.A. (the "South American Subsidiaries") (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and (B) has the corporate power and authority to own and lease its properties and to conduct its business as described in the Prospectus;
(ii) each of the South American Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or supplements theretoits ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
(iii) all of the issued and outstanding capital stock of each of the South American Subsidiaries has been duly authorized and validly issued, and is fully paid and nonassessable, and except as disclosed in the conditions set forth Prospectus, the shares of capital stock of each South American Subsidiary are owned directly or indirectly by the Company free and clear of any perfected security interest and, to such counsel's knowledge, any other security interests, claims, liens or encumbrances; and
(iv) to such counsel's knowledge, except as disclosed in Section 7(gthe Prospectus or in this Agreement, there are no outstanding (a) hereof securities or obligations of the any of the South American Subsidiaries convertible into or exchangeable for any capital stock of any such Subsidiary, (b) warrants, rights or options to subscribe for or purchase from any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (c) obligations of any such subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligations, or any such warrants, rights or options.
(g) You shall have been satisfied.received the written opinion of Philippe Colet, Associate Gxxxxxx Xxxxxxx of Forasol S.A., addressed to the Underwriter and dated the Closing Date to the effect that:
(i) each of Forasol S.A.,
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofRepresentatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorizationXxxxxxx Xxxx & Xxxxxxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule V hereto.
(c) Xxxxxx Xxxxxx, Deputy General Counsel and Senior Vice President of Allstate Insurance Company, shall have furnished to you his written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service Inc. or S&P Global Ratings, a division of S&P Global Inc., or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel to the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxxx X. Xxxxx, Xxx., Executive Vice President, General Counsel and Secretary of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter On the date of the Pricing Agreement for such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have received at or prior furnished to the Closing Date from Underwriter's counsel Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter consolidated financial statements of the Offered Shares under Company and its subsidiaries incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On Neither the Closing Date and Company nor any Option Closing Date, there of its subsidiaries shall have been delivered to sustained, since the Underwriter a signed opinion date of Shumaker Williamsthe latest audited consolidated financial statements incorporated by reference in the Time of Sale Information, P.C.any loss or interference with its business from fire, counsel to the Companyexplosion, dated as of each such xxxx xxd xxxxxxxed to the Underwriterflood or other calamity, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal consolidated results of any contract to which operations of the Company and its subsidiaries, taken as a whole, other than as disclosed or contemplated in the Subsidiaries Time of Sale Information, the effect of which, in any such case described in clause (i) or (ii), is a partyin the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The Nasdaq Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The Nasdaq Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in Section 7(g8(a) and Section 8(e) hereof and as to such other matters as the Representatives may reasonably request.
(j) The MoPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Sxxxxxx X. Xxx, Esq., Vice President and Deputy General Counsel of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in Section 7(gSections 8(a) and 8(e) hereof and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives’ reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorizationXxxxx & XxXxxxx LLP, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(c) Xxxx X. XxXxxx, Deputy General Counsel of the Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VII hereto.
(d) The Representatives shall have received from Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VIII hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VIII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the Underwriters, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter to purchase and pay for the Firm Shares that Units which it has agreed to purchase hereunder on hereunder, are subject to the Closing Date, and to purchase and pay for any Optional Shares accuracy (as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at of the date hereof, on and as of the Closing Date Dates) of and on any Option Closing Date to the continuing accuracy of compliance with the representations and warranties of the Company, Company herein and to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, the Prospectus The Registration Statement shall have been become effective and you shall have received notice thereof not later than 10:00 A.M., New York time, on the date on which the amendment to the registration statement originally filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior respect to the Closing Date Units or any Option Closing Dateto the Registration Statement, as the case may be, containing information regarding the public offering price of the Units has been filed with the Commission, or such later time and date as shall have been agreed to by you; if required, the Prospectus or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 434 and 424(b) under the Act; on or prior to the Closing Dates no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that or a similar purpose shall have been initiated instituted or shall be pending or, to your knowledge or to the knowledge of the Company's knowledge, shall be contemplated by the SEC Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Xxxxxxx, Xxxxx, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter;
(b) At the First Closing Date, you shall have received the opinion, dated as of the First Closing Date, of O'Melveny & Xxxxx LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriter. In rendering such opinion, such counsel may rely upon the Company's representations and warranties in this Agreement and upon certificates of any officer of the Company or by any authority public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of the State of California upon opinions of counsel satisfactory to you, in any jurisdiction designated by which case the Underwriter pursuant opinion shall state that they have no reason to Section 5(f) hereofbelieve that you and they are not entitled to so rely.
(bc) At the First Closing Date, you shall have received the opinion, dated as of the First Closing Date, of Xxxxxx, Xxxxxxxx & Xxxx LLP, patent counsel for the Company, in form and substance satisfactory to counsel for the Underwriter.
(d) All corporate proceedings and other legal matters incident relating to the authorization, form and validity of this Agreement, the Offered Shares Registration Statement, the Prospectus and other related matters shall be reasonably satisfactory to or reasonably approved by Xxxxxxx, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, and you shall have received from such counsel a signed opinion, dated as of the First Closing Date, with respect to the validity of the issuance of the Units, the form of the Registration Statement and Prospectus (other than the Prospectusfinancial statements and other financial data contained therein), and all other legal matters relating to the execution of this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriterother related matters as you may reasonably require. The Company shall have furnished to counsel for the Underwriter such counsel all documents and information that as they may have reasonably requested to enable request for the purpose of enabling them to pass upon render such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On You shall have received a letter prior to the effective date of the Registration Statement and again on and as of the First Closing Date and any Option Closing Datefrom Price Waterhouse LLP, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to independent public accountants for the Company, dated as substantially in the form approved by you, and including estimates of each such xxxx xxd xxxxxxxed to the Underwriter, to Company's revenues and results of operations for the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to period ending at the Underwriterend of the month immediately preceding the effective date and results of the comparable period during the prior fiscal year.
(f) At the Closing Date and on any Option Closing Date: Dates, (i) the representations and warranties of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of the Closing Dates and the Company shall have performed all of its obligations hereunder and satisfied all the conditions on its part to be satisfied at or prior to such Closing Date; (ii) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
or supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules and Regulations, and shall in all material respects conform to the requirements thereof, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall 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; (iviii) there shall have been, since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretogiven, there shall have been no material adverse change, lossor any development involving a prospective material adverse change, reductionin the business, termination properties, condition (financial or nonotherwise), results of operations, capital stock, long-renewal term or short-term debt or general affairs of any contract to which the Company or the Subsidiaries is a party, from that has not been, but would be required to be set forth in the Registration Statement and the Prospectus, except changes which the Registration Statement and Prospectus indicate might occur after the effective date of the Registration Statement, and the Company shall not have incurred any material liabilities or entered into any material agreement not in the ordinary course of business other than as referred to in the Registration Statement and Prospectus; and (viv) except as set forth in the Prospectus, no action, suit or proceeding at law or in equity shall be pending or or, to the knowledge of the Company, threatened against the Company or the Subsidiaries that which would be required to be set forth in the Prospectus, other than as set forth thereinRegistration Statement, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
materially and adversely affect the business, property, condition (gfinancial or otherwise), results of operations or general affairs of the Company, and (v) The Underwriter you shall have received received, at the First Closing Date and any Option Closing Date certificates Date, a certificate signed by each of the Chief Executive Officer Chairman of the Board or the President and the Chief Financial Officer principal financial or accounting officer of the Company, dated as of the date of the Closing Date or Option First Closing Date, as evidencing compliance with the case may be, and addressed to the Underwriter, to the effect that provisions of this subsection (if).
(g) the representations and warranties Upon exercise of the Company option provided for in this Agreement are true Section 2(b) hereof, the obligations of the Underwriter to purchase and correct, pay for the Option Units referred to therein will be subject (as if made at of the date hereof and as of the Option Closing Date or Date) to the following additional conditions:
(i) The Registration Statement shall remain effective at the Option Closing Date, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending, or, to your knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any reasonable request on the part of the Commission for additional information shall have been complied with to the satisfaction of Xxxxxxx, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter.
(ii) At the Option Closing Date there shall have been delivered to you the signed opinions of O'Melveny & Xxxxx LLP, counsel for the Company, and Christie, Parker & Xxxx, patent counsel for the Company, each dated as of the Option Closing Date, in form and substance satisfactory to Bachner, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, which opinions shall be substantially the same in scope and substance as the case may beopinion furnished to you at the First Closing Date pursuant to Sections 4(b) and 4(c) hereof, except that such opinions, where appropriate, shall cover the Option Units.
(iii) At the Option Closing Date there shall have been delivered to you a certificate of the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Option Closing Date, substantially the same in scope and substance as the certificate furnished to you at the First Closing Date pursuant to Section 4(f) hereof.
(iv) At the Option Closing Date there shall have been delivered to you a letter in form and substance satisfactory to you from Price Waterhouse LLP, dated the Option Closing Date and addressed to the Underwriter confirming the information in their letter referred to in Section 4(e) hereof and stating that nothing has come to their attention during the Company has complied with all period from the agreements, fulfilled all ending date of their review referred to in said letter to a date not more than five business days prior to the covenants and satisfied all the conditions on its part Option Closing Date which would require any change in said letter if it were required to be performed, fulfilled or satisfied dated the Option Closing Date.
(v) All proceedings taken at or prior to the Option Closing Date in connection with the sale and issuance of the Option Units shall be reasonably satisfactory in form and substance to you, and you and Bachner, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, shall have been furnished with all such documents, certificates, and opinions as you may reasonably request in connection with this transaction in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or its compliance with any of the covenants or conditions contained herein.
(h) No action shall have been taken by the Commission or the Option NASD the effect of which would make it improper, at any time prior to the Closing Date, as the case may be, and (ii) the signers for members of the certificate NASD to execute transactions (as principal or agent) in the Units, Class A Common Stock or the Warrants and no proceedings for the taking of such action shall have carefully examined been instituted or shall be pending, or, to the Registration Statement and knowledge of the Prospectus and Underwriter or the Company, shall be contemplated by the Commission or the NASD. The Company represents that at the date hereof it has no knowledge that any amendments such action is in fact contemplated by the Commission or supplements theretothe NASD. The Company shall have advised the Underwriter of any NASD affiliation of any of its officers, and directors, shareholders or their affiliates.
(i) If any of the conditions set forth herein provided for in this Section 7(g) hereof shall not have been satisfiedfulfilled as of the date indicated, this Agreement and all obligations of the Underwriter under this Agreement may be cancelled at, or at any time prior to, each Closing Date by you. Any such cancellation shall be without liability of the Underwriter to the Company.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is Securities shall be subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties on the part of the CompanyCompany contained herein as of the execution of this Agreement and as of the Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, hereunder and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 5(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives’ reasonable satisfaction;
(b) All corporate proceedings and other matters incident to the authorization[ ], form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriter. Company, shall have furnished to you their written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VI hereto.
(c) [ ], [ ] of the Company, shall have furnished to you her written opinion, dated the Time of Delivery for the Securities, in form and substance reasonably satisfactory to you, to the effect set forth in Schedule VII hereto.
(d) The Representatives shall have received from [ ], counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as amended and supplemented and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel all such documents and information that as they may have reasonably requested to enable request for this purpose of enabling them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there The Company shall have been delivered furnished to the Underwriter Representatives a signed opinion certificate of Shumaker Williams, P.C., counsel to the Company, dated as signed by the Chairman of each such xxxx xxd xxxxxxxed to the UnderwriterBoard, to the effect set forth in Exhibit A heretoChief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel, Treasurer, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer Controller of the Company, dated as the Time of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterDelivery, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Prospectus, the Final Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at correct on and as of the Closing Date or Time of Delivery with the Option Closing Date, same effect as if made on the case may be, Time of Delivery and that the Company has complied with all the agreements, fulfilled all the covenants agreements and satisfied all the conditions on its part to be performed, fulfilled performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Time of Delivery;
(ii) no stop order suspending the signers effectiveness of the certificate have carefully examined the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus and any amendments or supplements thereto, and the conditions Final Prospectus there has occurred no event required to be set forth in Section 7(gan amendment or supplement to the Registration Statement or Final Prospectus, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder which, upon filing, would be deemed to be incorporated by reference in the Time of Sale Prospectus or the Final Prospectus which has not been so filed.
(f) hereof On the date hereof, [ ] shall have furnished to the Representatives a letter, dated the date hereof, to the effect set forth in Schedule VIII hereto. As of the Time of Delivery, [ ] shall have furnished to the Representatives a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of the statements set forth in Schedule VIII hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not have been satisfiedany decrease in the rating of any of the Company’s debt securities by any of Xxxxx’x Investors Service or Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, or any public notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished or shall furnish to the Representatives such additional certificates of officers of the Company as to such other matters as the Representatives may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of [ ], counsel to the Underwriters, at [ ], at the Time of Delivery.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Sxxxxxx X. Xxx, Esq., Vice President and Deputy General Counsel of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation of the each Underwriter to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 5 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of the CompanyCompany and the Selling Shareholders, to the performance by the Company and the Selling Shareholders of its their covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Date, as the case may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that purpose shall have been initiated or shall be pending or, to the Representatives' knowledge or the knowledge of the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter Representatives pursuant to Section 5(f6(f) hereof. Furthermore, there has been no challenge to or comment on any document incorporated by reference in the Prospectus by the SEC. Any request on the part of the SEC or any state or foreign securities authority for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the UnderwriterUnderwriters. The options/warrants to be exercised by the Selling Shareholder in connection with the Selling Shareholders Firm Shares, if any, shall have been executed and the Custodian shall have received the certificates representing the Shares issued to the Selling Shareholders upon exercise of such options/warrants. The Company and the Selling Shareholders shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Underwriter Representatives shall have received from the Underwriter's Underwriters' counsel, Xxxxxx Xxxxxxxx LLP, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the UnderwriterRepresentatives, individually and as representatives of the several Underwriters, which opinion shall be satisfactory in all respects to the UnderwriterRepresentatives.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter Representatives shall have received a copy of an executed Lock-up Agreement from each person listed on Schedule III hereto.
(e) The Representatives shall have received at or prior to the Closing Date from Underwriter's the Underwriters' counsel a memorandum or summary, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter Underwriters of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter Representatives pursuant to Section 5(f6(f) hereof.
(ef) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a Representatives signed opinion opinions of Shumaker Williams, P.C.Blank Rome Xxxxxx Xxxxxxxxxx LLP, counsel to the CompanyCompany and the Selling Shareholders, dated as of each such xxxx xxd xxxxxxxed date and addressed to the UnderwriterRepresentatives, individually and as representatives of the several Underwriters, to the effect set forth in Exhibit Exhibits A hereto, and B hereto or to such effect as is otherwise reasonably satisfactory to the UnderwriterRepresentatives.
(fg) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments oror supplements thereto shall contain all statements that are required to be stated therein in accordance with the Act and the Regulations and in all material respects shall conform to the requirements of the Act and the Regulations, and neither the Registration Statement nor any post-effective amendment thereto nor the Prospectus and any amendments or supplements thereto shall 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; (ii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, except as otherwise stated therein, there shall have been no material adverse change in the Business Conditions of the Company and the Subsidiaries from that set forth therein, whether or not arising in the ordinary course of business; (iii) since the respective dates as of which information is given in the Registration Statement and the Prospectus or any amendment or supplement thereto, there shall have been no event or transaction, contract or agreement entered into by the Company or the Subsidiaries other than in the ordinary course of business and as set forth in the Registration Statement or Prospectus, that has not been, but would be required to be, set forth in the Registration Statement or Prospectus;
(iv) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effectmaterially adversely affect the Business Conditions of the Company and the Subsidiaries.
(gh) The Underwriter Representatives shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, Company dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the UnderwriterRepresentatives, individually and as representatives of the several Underwriters, to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may bebe in all material respects, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g9(g) hereof have been satisfied.
(i) The Representatives shall have received at the Closing Date, and any Option Closing Date, certificates of or on behalf of the Selling Shareholders dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Representatives, individually and as representatives of the several Underwriters, to the effect that (i) the Selling Shareholders have read this Agreement carefully, and the representations and warranties of the Selling Shareholders in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and (ii) the Selling Shareholders have examined the Registration Statement and Prospectus and any amendment or supplement thereto, and the conditions set forth in Section 9(g) of this Agreement have been satisfied.
(j) At the time this Agreement is executed and at the Closing Date and any Option Closing Date the Representatives shall have received a letter, dated the date of delivery thereof, addressed to the Representatives, individually and as representatives of the several Underwriters, in form and substance satisfactory to the Representatives in all respects (including, without limitation, the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) from BDO Xxxxxxx, LLP:
(i) confirming they are independent certified public accountants within the meaning of the Act and the Regulations, and stating that the section of the Registration Statement under the caption "Experts" is correct insofar as it relates to them;
(ii) stating that, in their opinion, the consolidated financial statements, schedules and notes of the Company and the Subsidiaries audited by them and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations;
(iii) stating that, on the basis of the specified procedures, which included the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information, as described in SAS No. 71, Interim Financial Information (with respect to the latest available unaudited consolidated financial statements of the Company), a reading of the latest available unaudited interim consolidated financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the minutes of the meetings of the shareholders and the Board of Directors of the Company and the Audit and Compensation Committees of such Boards and inquiries to certain officers and other employees of the Company responsible for operational, financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that would cause them to believe that (A) the unaudited consolidated financial statements of the Company included in the Registration Statement and related schedules, if any, (1) do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations, or (2) were not fairly presented in conformity with GAAP or statutory accounting practices on a basis substantially consistent with that of the audited Consolidated Financial Statements and related schedules included in the Registration Statement; or (B) at a specified date not more than five business days prior to the date of such letter, there was any change in the capital stock (other than the issuance of capital stock upon the exercise of options granted under plans disclosed in the Prospectus or otherwise outstanding and disclosed in the Prospectus), increase in long-term debt of the Company or any decrease in consolidated net current assets or shareholders equity of the Company as compared with the amounts shown in the June 30, 2001 audited balance sheets of the Company included the Registration Statement or that for the periods from June 30, 2001 to the date of the latest available unaudited financial statements of the Company and to a specified date not more than five days prior to the date of the letter, there were any decreases, as compared to the corresponding periods in the prior year, in operating income or total or per share amounts of net income, except in all instances for changes, decreases or increases that the Registration Statement discloses have occurred or may occur and except for such other changes, decreases or increases which the Underwriters shall in their sole discretion accept;
(iv) stating that they have compared specific dollar amounts (or percentages derived from such dollar amounts), numbers of shares and other numerical data and financial information set forth in the Registration Statement that have been specified by the Representatives prior to the date of this Agreement (in each case to the extent that such dollar amounts, percentages and other information is derived from the general accounting records subject to the internal controls of the Company's accounting systems, or has been derived directly from such accounting records by analysis or comparison or has been derived from other records and analyses maintained or prepared by the Company) with the results obtained from the application of readings, inquiries and other appropriate procedures set forth in the letter, and found them to be in agreement. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Registration Statement for purposes of this subsection (j).
(k) There shall have been duly tendered to the Representatives for the respective accounts of the Underwriters, certificates or uncertificated shares representing all of the Offered Shares to be purchased by the Underwriters on the Closing Date or Option Closing Date, as the case may be.
(l) The issuance and sale of the Offered Shares shall be legally permitted under applicable Blue Sky or state securities laws so long as such sales are made in accordance with the Blue Sky Memorandum.
(m) The Representatives shall have received copies of the Custody Agreement and Power of Attorney provided for in Section 2(a) hereof for each Selling Shareholder, and such documents shall have been approved in form and substance by the Underwriters' counsel, such approval not to be withheld unreasonably.
(n) All corporate and other proceedings and other matters incident to the authorization, form and validity of this Agreement and the form of the Registration Statement and Prospectus and all other legal matters related to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to counsel to the Underwriters. The Company and the Selling Shareholder shall have furnished to such counsel all documents and information that they shall have reasonably requested to enable them to pass upon such matters.
(o) At the Closing Date and any Option Closing Date, the Representatives shall have been furnished such additional documents, information and certificates relating to the Company and the Subsidiaries or the transactions contemplated by this Agreement as they shall have reasonably requested. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Representatives and the Underwriters' counsel. The Company and the Selling Shareholders shall furnish the Representatives with such conformed copies of such opinions, certificates, letters and other documents as they shall reasonably request. If any condition to the Underwriters' obligations hereunder to be fulfilled prior to or at the Closing Date or any Option Closing Date, as the case may be, is not fulfilled, the Representatives may, on behalf of the several Underwriters, terminate this Agreement with respect to the Closing Date or such Option Closing Date, as applicable, or, if they so elect, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to the Company and the Selling Shareholders.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Cxxxxx X. Xxxxx, Xxx., Executive Vice President, General Counsel and Secretary of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Mxxxxx, Xxxxx & Bxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter On the date of the Pricing Agreement for such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have received at or prior furnished to the Closing Date from Underwriter's counsel Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter consolidated financial statements of the Offered Shares under Company and its subsidiaries incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On Neither the Closing Date and Company nor any Option Closing Date, there of its subsidiaries shall have been delivered to sustained, since the Underwriter a signed opinion date of Shumaker Williamsthe latest audited consolidated financial statements incorporated by reference in the Time of Sale Information, P.C.any loss or interference with its business from fire, counsel to the Companyexplosion, dated as of each such xxxx xxd xxxxxxxed to the Underwriterflood or other calamity, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal consolidated results of any contract to which operations of the Company and its subsidiaries, taken as a whole, other than as disclosed or contemplated in the Subsidiaries Time of Sale Information, the effect of which, in any such case described in clause (i) or (ii), is a partyin the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The Nasdaq Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The Nasdaq Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in Section 7(g8(a) and Section 8(e) hereof and as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters to purchase and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is this Agreement are subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy satisfaction of each of the following Conditions:
(a) All the representations and warranties of the CompanyCompany contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. All agreements of the Company set forth in Sections 6(a) through (g), Sections 6(i), 6(l) and 6(m), and the last paragraph of Section 3 of this Agreement that are required to the performance be performed or complied with by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On at or prior to the Closing Date shall have been performed or any Option complied with by the Company at or prior to the Closing Date. The Company shall have performed or complied in all material respects with all of its agreements herein contained (other than those referenced in the immediately preceding Sentence) and required to be performed or complied with by it at or prior to the Closing Date.
(i) The Registration Statement shall be effective on the date hereof, or if a post-effective amendment is required to be filed under the Act, such post-effective amendment shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall have become effective) not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as you may approve in writing and, at the case may beClosing Date, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Offered Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that purpose shall have been initiated commenced or shall be pending or, to the Company's knowledge, shall be contemplated before or threatened by the SEC or by any authority Commission, (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects, and (iii) no stop order suspending the sale of the Shares in any jurisdiction designated by referred to in Section 6(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to market the Underwriter pursuant Shares or to Section 5(f) hereofenforce contracts for the sale of the Shares.
(bi) All corporate proceedings and other matters incident to Since the authorization, form and validity date of this Agreement, the Offered Shares and the form of latest balance sheet included in the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement there shall not have been any Material Adverse Change, whether or not arising in the ordinary course of business, (ii) since the date of the latest balance sheet included in the Registration Statement and the transactions contemplated hereby Prospectus, there shall be satisfactory not have been any material adverse change, or any development involving a prospective material adverse change, in all the capital stock or long-term debt, or any material respects to counsel for increase in short-term debt, of the Underwriter. The Company or any of its Subsidiaries and (iii) the Company and its Subsidiaries shall have furnished to such counsel all documents and information no liability or obligation, direct or contingent, that they may have reasonably requested to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed is material to the Underwriter, Company and its Subsidiaries taken as a whole and is required to be disclosed in the notes to its financial statements in accordance with GAAP and which opinion shall be satisfactory to is not so disclosed in or incorporated by reference into the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered SharesRegistration statement.
(d) The Underwriter You shall have received at or prior to the Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter certificate of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and Date, executed on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as behalf of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company confirming the matters set forth in paragraphs (a), (b) and (c) of this Section 10.
(e) You shall have received an opinion (satisfactory to you and your counsel), dated the Closing Date, of McGlinchey Stafford, a Professioxxx Xxxxxxx Xiability Company, counsel for the Company, to the effect that:
(i) (A) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and (B) has the corporate power and authority to own and lease its properties and to conduct its business as described in the Prospectus;
(ii) the Company has the corporate power and authority to enter into and perform this Agreement and to issue, sell and deliver the Shares; this Agreement has been duly and validly authorized by all necessary corporate action by the Company, and have been duly executed and delivered by the Company;
(iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the "Description of Capital Stock" section of the Registration Statement and the Prospectus;
(iv) the Shares have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) neither the issuance and sale of the Shares, nor the performance of the Company's obligations pursuant to this Agreement will (A) conflict with, result in a breach of, or constitute a default under the terms of any Louisiana statute, rule or regulation to which the Company or any of its properties is subject Company or (B) violate any of the provisions of the charter or by-laws of the Company as in effect on the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that opinion;
(ivii) the representations articles of incorporation and warranties bylaws of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior conform to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined descriptions thereof contained in the Registration Statement and the Prospectus and any amendments the provisions of Louisiana law described in the Registration Statement and the Prospectus conform to the descriptions thereof contained in the Registration Statement and the Prospectus.
(f) You shall have received an opinion (satisfactory to you and your counsel), dated the Closing Date, of Baker & McKenzie and Brons & Salxx, Xxxxxxelan xxx Xrgexxxxx counsel for the Company, respectively, to the effect that:
(i) Each of Pride International, C.A., Perforaciones Quitral-Co de Venezuela, S.A. and Pride International, S.A. (the "SOUTH AMERICAN SUBSIDIARIES") (A) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and (B) has the corporate power and authority to own and lease its properties and to conduct its business as described in the Prospectus;
(ii) each of the South American Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or supplements theretoits ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
(iii) all of the issued and outstanding capital stock of each of the South American Subsidiaries has been duly authorized and validly issued, and is fully paid and nonassessable, and except as disclosed in the conditions set forth Prospectus, the shares of capital stock of each South American Subsidiary are owned directly or indirectly by the Company free and clear of any perfected security interest and, to such counsel's knowledge, any other security interests, claims, liens or encumbrances; and
(iv) to such counsel's knowledge, except as disclosed in Section 7(gthe Prospectus or in this Agreement, there are no outstanding (a) hereof securities or obligations of the any of the South American Subsidiaries convertible into or exchangeable for any capital stock of any such Subsidiary, (b) warrants, rights or options to subscribe for or purchase from any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (c) obligations of any such subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligations, or any such warrants, rights or options.
(g) You shall have been satisfied.received the written opinion of Jean-Marc Laveissiere, Genxxxx
Appears in 1 contract
Samples: Underwriting Agreement (Pride Petroleum Services Inc)
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledge, use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall be contemplated 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 SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Date(ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Xxxxxxx X. Xxx, Esq., Vice President and Deputy General Counsel of the Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Xxxxxx, Xxxxx & Xxxxxxx LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(ei) On The Company shall not have sustained, since the Closing Date and date of the latest audited financial statements incorporated by reference in the Time of Sale Information, any Option Closing Dateloss or interference with its business from fire, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williamsexplosion, P.C.flood or other calamity, counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A heretowhether or not covered by insurance, or to such effect from any labor dispute or court or governmental action, order or decree, other than as is otherwise reasonably satisfactory to disclosed or contemplated in the Underwriter.
Time of Sale Information, and (f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Illinois state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The ICC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation respective obligations of the Underwriter Underwriters hereunder are subject to purchase the accuracy, when made and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing each Delivery Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties of the CompanyCompany and the Selling Stockholders contained herein, to the performance by the Company and the Selling Stockholders of its covenants and their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) If required by the Regulations, the The Prospectus shall have been timely filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Date, as the case may be, Commission in accordance with Section 6(a); no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated threatened by the SEC Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofProspectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to such Delivery Date that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxxx, 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Offered Shares and Custody Agreements, the form Powers of Attorney, the Stock, the Registration Statement and the Prospectus, the Merger, the Equity Recapitalization 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. The Underwriters, and the Company and the Selling Stockholders shall have furnished to such counsel all documents and information that they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter Company shall cause legal opinions to be delivered as follows:
(A) Xxxxxxxx & Xxxxx shall have received at or prior furnished to the Closing Date from Underwriter's Representatives its written opinion, as counsel a memorandum or summaryto the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the UnderwriterRepresentatives, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.that:
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement The Company has been duly incorporated and any post-effective amendment thereto is validly existing as a corporations and the Prospectus Company and any amendments orthe Significant Subsidiaries are in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and, based solely on certificates of public officials, are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification and have all power and authority necessary to own or hold their respective properties and conduct the businesses in which they are engaged;
(ivii) since the respective dates The Company has an authorized capitalization as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the shares of Stock being delivered on such Delivery Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; and all of the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid, non-assessable and (except for directors' qualifying shares and except as set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(iii) Except as described in the Prospectus, there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(iv) To the best of such counsel's knowledge and other than as set forth thereinin the Prospectus, and there are no legal or governmental proceedings shall be pending or threatened against or directly affecting to which the Company or any of its subsidiaries is a party or of which any property or assets of the Subsidiaries before Company or by any federalof its subsidiaries is the subject which, state if determined adversely to the Company or other commissionany of its subsidiaries, board or administrative agency wherein an unfavorable decision, ruling or finding would might have a Material Adverse Effect.material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(gv) The Underwriter shall have received at Registration Statement was declared effective under the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated Securities Act as of the date and time specified in such opinion, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the Closing Date or Option Closing Date, as Rules and Regulations specified in such opinion on the case may be, and addressed to the Underwriterdate specified therein and, to the effect that (i) knowledge of such counsel, no stop order suspending the representations and warranties effectiveness of the Company in this Agreement are true Registration Statement has been issued and correct, as if made at and as of no proceeding for that purpose is pending or threatened by the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and Commission; (iivi) the signers of the certificate have carefully examined the The Registration Statement and the Prospectus and any further amendments or supplements theretothereto made by the Company prior to such Delivery Date (other than the historical and pro forma financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the conditions set forth in Section 7(g) hereof have been satisfied.Rules and Regulations (other than the historical and pro forma financial statements and related schedules therein, as to which such counsel need express no opinion);
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation respective obligations of the Underwriter Underwriters hereunder are subject to purchase the accuracy, when made and pay for the Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties of the Company, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by the Regulations, the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to the Initial Closing Date or any an Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a)(i). 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 or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or preventing or suspending the sale of any use of the Offered Shares Prospectus or any Issuer Free Writing Prospectus shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding or examination for that such purpose shall have been initiated or shall be pending or, to the Company's knowledge, shall be contemplated threatened by the SEC Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereofProspectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Initial Closing Date or such Option Closing Date, as the case may be, that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, 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.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Offered Shares and Notes, the form of Indenture, the Registration Statement Statement, the Prospectus and the any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriter. The Underwriters, and the Company shall have furnished to such counsel all documents and information that they may have reasonably requested request to enable them to pass upon such matters. .
(d) Xxxxxxxx & Xxxxxxxx LLP and the General Counsel of the Company shall have furnished to the Representatives their respective written opinions, addressed to the Underwriters and dated the Initial Closing Date or such Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, substantially in the forms attached hereto as Exhibit B-1 and B-2, respectively.
(e) The Underwriter Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriter's counselUnderwriters, an opinionsuch opinion or opinions and negative assurance letter, dated the Initial Closing Date or such Option Closing Date, as the case may be, with respect to the issuance and sale of the Notes, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives 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.
(f) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of the Securities Act and the applicable rules and regulations of the Commission and the Public Company Accounting Oversight Board 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 and 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 other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) At the time of execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they were independent public accountants with respect to the Company and its subsidiaries within the meaning of the Securities Act and the applicable rules and regulations of the Commission and the Public Company Accounting Oversight Board 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 and 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 during their engagement as auditor of the Company and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of KPMG LLP referred to in subsection (f) above and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated the Initial Closing Date or such Option Closing Date, as the case may be, (i) confirming that they are independent public accountants with respect to the Company and any its subsidiaries within the meaning of the Securities Act and the rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board 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 Pricing Disclosure Package and 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 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.
(i) With respect to the letter of Ernst & Young LLP referred to in subsection (g) above and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated the Initial Closing Date or such Option Closing Date, as the case may be, (i) confirming that they were independent public accountants with respect to the Company and its subsidiaries within the meaning of the Securities Act and the rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board 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 Pricing Disclosure Package and 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 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.
(j) The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer as to such matters as the Representatives may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Company in Section 1 are true and correct on and as of the Initial Closing Date or such Option Closing Date, as the case may be, and addressed the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to the Underwriter, which opinion shall be satisfactory to the Underwriter.
(c) The NASD shall have indicated it has no objection to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received performed or satisfied hereunder at or prior to the Initial Closing Date from Underwriter's counsel a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall as the case may be;
(ii) That no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriterinstituted or, to the effect set forth in Exhibit A heretoknowledge of such officers, or to such effect as is otherwise reasonably satisfactory threatened; and the Commission shall not have notified the Company of any objection to the Underwriter.
(f) At use of the Closing Date and on any Option Closing Date: (i) form of the Registration Statement and or any post-effective amendment thereto and thereto; and
(iii) That they have examined the Registration Statement, the Prospectus and any amendments or
the Pricing Disclosure Package, and, in their opinion, (ivA) since (1) the respective dates Registration Statement, as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoEffective Date, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v2) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of its date and on the date of the Initial Closing Date or such Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that (i3) the representations and warranties of the Company in this Agreement are true and correctPricing Disclosure Package, as if made at and as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(k) The Company shall have furnished to the Representatives a certificate, dated the date hereof and the Initial Closing Date or the Option Closing Date, as the case may be, in each case signed by its Chief Financial Officer, in form and that substance satisfactory to the Representatives.
(l) The Notes shall be eligible for clearance and settlement through DTC.
(m) The Company and the Trustee shall have executed and delivered the Indenture, and the Underwriters shall have received an original copy thereof, duly executed by the Company and the Trustee.
(n) Subsequent to the earlier of the Applicable Time and the execution and delivery of this Agreement there shall not have occurred any of the following: (i) (A) trading in securities generally on any securities exchange that has complied registered with all the agreementsCommission under Section 6 of the Exchange Act (including the New York Stock Exchange, fulfilled all The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market), or (B) trading in any securities of the covenants and satisfied all 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 general moratorium on commercial banking activities 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 its part the financial markets in the United States shall be such) or any other calamity or crisis either within or outside the United States, as to be performedmake it, fulfilled in the judgment of the Representatives, impracticable or satisfied at inadvisable to proceed with the public offering or prior delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus.
(o) The Maximum Number of Underlying Securities shall have been duly listed, subject to notice of issuance, on the NASDAQ Global Select Market.
(p) The Lock-Up Agreements between the Representatives and the officers and directors of the Company set forth on Schedule II, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on the Initial Closing Date or the Option Closing Date, as the case may be.
(q) On or prior to the Initial Closing Date or such Option Closing Date, as the case may be, the Company shall have furnished to the Underwriters such further certificates and (ii) documents as the signers Representatives may reasonably request. The several obligations of the certificate have carefully examined Underwriters to purchase Additional Notes hereunder are subject to the Registration Statement delivery to the Representatives on the applicable Option Closing Date of such documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Prospectus Additional Notes to be sold on such Option Closing Date and any amendments other matters related to the issuance of such Additional Notes. All opinions, letters, evidence and certificates mentioned above or supplements thereto, 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 counsel for the conditions set forth in Section 7(g) hereof have been satisfiedUnderwriters.
Appears in 1 contract
Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter several Underwriters of the First Mortgage Bonds under the Pricing Agreement relating to purchase and pay for such First Mortgage Bonds shall be subject, in the Firm Shares that it has agreed to purchase hereunder on discretion of the Closing DateRepresentatives, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the condition that all representations and warranties and other statements of the CompanyCompany contained herein and in or incorporated by reference in the Pricing Agreement relating to such First Mortgage Bonds are, to at and as of the performance by Time of Sale and the Time of Delivery for such First Mortgage Bonds, true and correct, the condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed at and obligations hereunderas of the Time of Sale and the Time of Delivery for such First Mortgage Bonds, as the case may be, and to the following additional conditions:
(a) If required by the Regulations, the The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) of under the Regulations Act within the applicable time period prescribed for such filing by the Regulations. On or prior rules and regulations under the Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act to the Closing Date or any Option Closing Date, as extent required by Rule 433 under the case may be, Act; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the First Mortgage Bonds shall have been initiated or shall be pending or, threatened by the Commission and no notice of objection of the Commission to the Company's knowledgeuse 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, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication shall be contemplated have been initiated or threatened by the SEC or by any authority in any jurisdiction designated by Commission; and all requests for additional information on the Underwriter pursuant part of the Commission shall have been complied with to Section 5(f) hereofthe Representatives’ reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Offered Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel Counsel for the Underwriter. The Company Underwriters shall have furnished to the Underwriters such written opinion or opinions, dated the Time of Delivery for such First Mortgage Bonds, with respect to such matters as the Underwriters may reasonably request, and such counsel all shall have received such documents and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an In rendering such opinion, dated as such counsel may (i) state that such opinion is limited to matters covered by the federal laws of the Closing Date United States of America and any Option Closing Datethe laws of the State of New York and (ii) rely as to matters of fact, as the case may be, and addressed to the Underwriterextent deemed proper, which opinion shall be satisfactory to on certificates of responsible officers of the UnderwriterCompany and public officials.
(c) The NASD Underwriters shall have indicated it has no objection received the favorable opinions dated the Time of Delivery for such First Mortgage Bonds of:
(i) Xxxxx X. Xxxxxxxxx, Esq., Senior Corporate Counsel of Ameren Services Company, in the form attached as Exhibit A hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the underwriting arrangements pertaining Underwriters for use in offering the First Mortgage Bonds, with changes therein to reflect such supplementation; and
(ii) Xxxxxx, Xxxxx & Bockius LLP, in the form attached as Exhibit B hereto (x) with such changes therein as may be agreed upon by the Company and the Representatives with the approval of counsel for the Underwriters, and (y) if the Time of Sale Information shall be supplemented after being furnished to the sales of any of Underwriters for use in offering the Offered SharesFirst Mortgage Bonds, with changes therein to reflect such supplementation.
(d) The Underwriter shall have received On the date of the Pricing Agreement for such First Mortgage Bonds at or a time prior to the Closing Date from Underwriter's counsel execution of the Pricing Agreement with respect to such First Mortgage Bonds and at the Time of Delivery for such First Mortgage Bonds, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a memorandum or summaryletter, dated the date of such Pricing Agreement, and a letter dated such Time of Delivery, respectively, in form and substance satisfactory to the UnderwriterRepresentatives, with respect to the qualification for offering and sale by the Underwriter financial statements of the Offered Shares under Company incorporated by reference in the securities or Blue Sky laws Registration Statement, the Time of such jurisdictions designated by Sale Information and the Underwriter pursuant to Section 5(f) hereofProspectus.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) The Company shall not have sustained, since the Registration Statement date of the latest audited financial statements incorporated by reference in the Time of Sale Information, 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 disclosed or contemplated in the Time of Sale Information, and any post-effective amendment thereto and the Prospectus and any amendments or
(ivii) since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements theretoTime of Sale Information, there shall not have been no material adverse any change, lossor any development involving a prospective change, reductionin or affecting the general affairs, termination management, financial position, shareholders’ equity or non-renewal results of operations of the Company, other than as disclosed or contemplated in the Time of Sale Information, the effect of which, in any contract such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to which make it impracticable or inadvisable to proceed with the Company public offering, sale or delivery of the Subsidiaries is a partyFirst Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(f) On or prior to the Time of Delivery, the Representatives shall have received satisfactory evidence that has not been, but would be required to be the First Mortgage Bonds are rated as set forth in the Registration Statement or Prospectus; Issuer Free Writing Prospectus listed on Part A of Annex II hereto and (v) no action, suit or proceeding that such ratings are in effect at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse EffectTime of Delivery.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of On or after the date of the Closing Date or Option Closing Date, as the case may be, and addressed Pricing Agreement relating to the UnderwriterFirst Mortgage Bonds, to the effect that (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock, unless such surveillance or review has been publicly announced prior to the date of the Pricing Agreement.
(h) On or after the date of the Pricing Agreement relating to the First Mortgage Bonds there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally by the Commission, the New York Stock Exchange or The NASDAQ Stock Market or any setting of minimum or maximum prices for trading thereon; (ii) a suspension or material limitation in trading in the Company’s securities by the Commission, the New York Stock Exchange, or The NASDAQ Stock Market; (iii) a general moratorium on commercial banking activities declared by Federal, New York state or Missouri state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iv) any outbreak or escalation of hostilities involving the United States or the declaration by the 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 event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or delivery of the First Mortgage Bonds on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the First Mortgage Bonds a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement are true and correct, as if made herein at and as of the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and that performance by the Company has complied with of all the agreements, fulfilled all the covenants and satisfied all the conditions on of its part obligations hereunder to be performed, fulfilled or satisfied performed at or prior to the Closing Date or the Option Closing Datesuch Time of Delivery, as to the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions matters set forth in subsections (a) and (e) of this Section 7(g8 and as to such other matters as the Representatives may reasonably request.
(j) The MPSC Order shall be in full force and effect at the Time of Delivery. If any of the events specified in Sections 8(e), 8(g) or 8(h) hereof shall have been satisfiedoccurred or the representation in Section 2(s) hereof is incorrect, the Pricing Agreement relating to the First Mortgage Bonds may be terminated by the Representatives on notice to the Company at any time on or prior to the Time of Delivery and upon such notice being given, the parties hereto and thereto shall be released and discharged from their respective obligations hereunder and thereunder (except for the liability of the Company pursuant to Sections 6 or 12 hereof and the obligations of the parties hereto and thereto pursuant to Section 9 hereof). Notwithstanding any such termination, the provisions of Sections 6, 9, 11, 12, 13, 14, 16 and 19 hereof shall remain in full force and effect.
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Conditions to Underwriters’ Obligations. The obligation obligations of the Underwriter Underwriters of any Securities under the Pricing Agreement relating to purchase such Securities shall be subject, in their discretion, to the condition that all representations and pay warranties and other statements of the Company herein are, at and as of the Closing Date for such Securities, true and correct in all material respects, the Firm Shares condition that it has agreed the Company shall have performed all of its obligations hereunder to purchase hereunder on be performed at or before the Closing Date, and to purchase and pay for any Optional Shares as to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject at the date hereof, on the Closing Date and on any Option Closing Date to the continuing accuracy of the representations and warranties of the Company, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions:
(a) If required by The Final Prospectus as amended or supplemented in relation to the Regulations, the Prospectus applicable Securities shall have been filed with the SEC Commission pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. On or prior to rules and regulations under the Closing Date or any Option Closing Date, as the case may be, Act and in accordance with Section 4(a) hereof; no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including or any document incorporated by reference therein) or the sale of any of the Offered Shares part thereof shall have been issued under the Act or any state or foreign securities law, and no proceedings proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall be pending or, have been complied with to the Company's knowledge, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.Representatives' reasonable satisfaction;
(b) All corporate proceedings and other matters incident Counsel for the Underwriters, shall have furnished to the authorizationUnderwriters such written opinion or opinions, form and dated such Closing Date, with respect to the incorporation of the Company, the validity of this Agreementthe Securities being delivered on such Closing Date, the Offered Shares and the form of the Registration Statement and the Final Prospectus, and all such other legal related matters relating to this Agreement as the Underwriters may reasonably request, and the transactions contemplated hereby shall be satisfactory in all material respects to such counsel for the Underwriter. The Company shall have furnished to received such counsel all documents papers and information that as they may have reasonably requested request to enable them to pass upon such matters. The Underwriter shall have received from the Underwriter's counsel, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriter, which opinion shall be satisfactory to the Underwriter.;
(c) The NASD Skadden, Arps, Slate, Meagxxx & Xlom XXX, counsel for the Company, shall have indicated it has no objection furnished to the underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Underwriters their written opinion, dated such Closing Date from Underwriter's counsel a memorandum or summaryDate, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Offered Shares under the securities or Blue Sky laws of such jurisdictions designated by the Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriter a signed opinion of Shumaker Williams, P.C., counsel to the Company, dated as of each such xxxx xxd xxxxxxxed to the Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or
(iv) since the respective dates as of which information is given Underwriters, substantially in the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or the Subsidiaries that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the Company or the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed form attached to the UnderwriterPricing Agreement as Schedule III. Insofar as such opinion involves factual matters, such counsel may rely, to the effect that (i) the representations and warranties extent such counsel deems proper, upon certificates of officers of the Company in this Agreement are true and correct, as if made at its subsidiaries and as certificates of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 7(g) hereof have been satisfiedpublic officials.
Appears in 1 contract
