Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions: (a) The Registration Statement shall have become effective under the Act and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority. (b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date. (c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. (d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters. (e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters. (f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters. (g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance. (h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering. (i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date. (j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 4 contracts
Sources: Underwriting Agreement (China Electric Motor, Inc.), Underwriting Agreement (ZST Digital Networks, Inc.), Underwriting Agreement (ZST Digital Networks, Inc.)
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters to purchase and pay for the Units which the Underwriters have agreed to purchase hereunder are subject to: the accuracy, as of the date hereof and as of the Closing Dates, of all of the representations and warranties of the Company and contained in this Agreement; the Company's compliance with, or performance of, all of its covenants, undertakings and agreements contained in this Agreement that are required to be complied with or performed on or prior to each of the Closing Dates and to the following additional conditions:
(a) The Registration Statement shall have become effective under the Act and, at On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings proceeding for that purpose shall have been instituted before or be pending or, to the knowledge of the Company or the RepresentativesCompany, shall be contemplated threatened by the Commission; any request for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission; and neither the Registration Statement nor any state securities or “Blue Sky” commissioner or authorityamendment thereto shall have been filed to which counsel to the Underwriters shall have reasonably objected, in writing.
(b) At each The Representative shall not have disclosed in writing to the Company that the Registration Statement or Prospectus or any amendment or supplement thereto contained, as of the date thereof, an untrue statement of a fact which, in the opinion of counsel to 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 materially misleading.
(c) Between the date hereof and the Closing Date, (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 such Closing Date and the Company shall not have performed all sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(d) Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, licenses, permits, operations or financial condition or income of the obligations Company.
(e) Except as contemplated herein or as set forth in the Registration Statement and complied with all of Prospectus, during the conditions hereunder on its part period subsequent to be performed or complied with on or the Effective Date and prior to the Closing Date; , (iiA) the Company shall have conducted its business in the usual and ordinary manner as the same was being conducted on the date of the filing of the initial Registration Statement and (B) except in the ordinary course of its business, the Company shall not have incurred any material liabilities or obligations (direct or contingent), or disposed of any of its assets, or entered into any material transaction, and (C) the Company shall not have suffered or experienced any material adverse change in its business, affairs or in its condition, financial or otherwise. On the Closing Date, the capital stock and surplus accounts of the Company shall be substantially as great as at its last financial report without considering the proceeds from the sale of the Units except to the extent that any decrease is disclosed in or contemplated by the Prospectus.
(f) The authorization of the Units, the Common Stock and the Warrants, the Registration Statement, each preliminary prospectus and the Prospectus and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Underwriters.
(g) The Company shall have furnished to the Representative the opinions, dated the Closing Date, and Additional Closing Date(s), addressed to you, of Hornsby, Sacher, Zelman, Stanton, ▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel for the Company, that:
(i) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the Registration Statement and Prospectus; it has authorized and outstanding capital as set forth in the Registration Statement and Prospectus; and the Company is duly licensed or qualified as a foreign corporation in all jurisdictions in which the ownership or leasing of its properties requires such qualification or license, except where failure to be so qualified or licensed would have no material adverse effect on the business of the Company.
(ii) The Company has an authorized, issued and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Common Stock and Preferred Stock are duly authorized, validly issued, fully paid, and non-assessable, and do not have any amendments preemptive rights. The Company will have duly authorized, reserved and set aside shares of Common Stock issuable upon exercise of the Warrants and any other outstanding options, warrants or supplements thereto shall stock option plans and when issued in accordance with the terms contained therein against payment therefor, will be duly and validly issued, fully paid and non-assessable.
(iii) The Common Stock, Warrants and the Underwriters' Warrant conform to descriptions thereof under "Description of Securities" contained in the Prospectus.
(iv) The Underwriters will receive good and marketable title to the Units purchased by them from the Company in accordance with the terms and provisions of this Agreement, to the best of such counsel's knowledge, free and clear of all liens, encumbrances, claims, security interests, restrictions, stockholders' agreements and voting trusts whatsoever.
(v) Except as set forth in the Prospectus, there are no outstanding options, warrants, or other rights, providing for the issuance of, and, to the best of the knowledge of such counsel, no commitments, plans or arrangements to issue, any shares of any class of capital stock of the Company, or any security convertible into, or exchangeable for, any shares of any class of capital stock of the Company.
(vi) To the best of such counsel's knowledge, no consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the valid authorization, issue or sale of the Units hereunder, except such as may be required under the Act or state securities or Blue Sky Laws.
(vii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose have been instituted or are pending before or threatened by, the Commission;
(viii) To the best of such counsel's knowledge and based upon the investigation described below, the Registration Statement and Prospectus, and each amendment thereof and supplement thereto, comply as to form in all material respects conform to with the applicable requirements of the Act and the Rules and RegulationsRegulations (except that no opinion need be expressed as to financial statements, notes thereto, and neither financial data contained in the Registration Statement or Prospectus). Such counsel has participated in conferences with officers and representatives of the Company and with its certified public accountants in the preparation of the Registration Statement and the Prospectus. At such conferences counsel has made inquiries of such officers, representatives and accountants, and discussed the contents of the Registration Statement and the Prospectus. Such counsel has not independently verified, and, accordingly, does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement or the Prospectus, other than as set forth the Prospectus insofar as such statements relate to the contents of particular documents therein described, except for documents prepared by counsel for Underwriter. On the basis of the foregoing, nothing has come to the attention of such counsel to cause such counsel to believe that the Registration Statement, any preliminary prospectus or the Prospectus, Prospectus or any amendment or supplement thereto, shall contain thereto contains 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any a material fact required to be stated therein or necessary in order to make statements therein, in light of the statements therein circumstances under which they were made, not misleadingmisleading (except, in the case of both the Registration Statement and any amendment thereto and the Prospectus and any supplement thereto, for the financial statements, notes thereto and other financial and statistical data and schedules contained therein, as to which such counsel need express no opinion); and such counsel is familiar with all contracts referred to in the Registration Statement or in the Prospectus and such contracts are sufficiently summarized or disclosed therein, except for contracts prepared on behalf of the Underwriter, or filed as exhibits thereto, as required, and such counsel does not know of any other contracts required to be summarized or disclosed or filed; and such counsel does not know of any legal or governmental proceedings to which the Company is a party, or in which property of the Company is the subject, of a character required to be disclosed in the Registration Statement or the Prospectus which are not so disclosed therein.
(dix) On each Closing Date you shall The statements in the Registration Statement under the caption "Business" have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to been reviewed by such counsel such documents and insofar as they may have reasonably requested for the purpose refer to descriptions of enabling them to pass upon such mattersagreements, statutes, licenses, certifications, rules or regulations or legal conclusions, are correct in all material respects.
(ex) On each Closing Date you shall have received This Agreement has been duly authorized and executed by the signed opinionCompany and is a valid and binding agreement of the Company enforceable in accordance with its terms subject to bankruptcy, dated as of such dateinsolvency, of K&L Gates LLPreorganization, counsel moratorium and other laws affecting creditors rights generally and except that no opinion need be given with regard to the Company, in form reasonably satisfactory to counsel for enforceability of Section 9 hereof or the Underwriters, together with signed or photostatic copies thereof for each availability of the other Underwritersequitable relief.
(fxi) At To the time best knowledge of such counsel: (a) no default exists, and no event has occurred which, with notice or lapse of time, or both, would constitute a default in the due performance and observance of any material term, covenant or condition by the Company of any indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its business or its properties may be bound or affected, except where such default would not have a material adverse effect on the business of the signing of this Agreement Company and on each Closing Date, you shall have received a signed letter, dated, respectively, except as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) disclosed in the form heretofore approved by counsel for Prospectus; (b) the Underwriters.
(g) As of Company has full power and lawful authority to authorize, issue and sell the effective date of Units on the terms and conditions set forth herein and in the Registration StatementStatement and in the Prospectus; (c) no consent, approval, authorization or other order of any regulatory authority is required for such authorization, issue or sale, except as may be required under the Common Stock shall be listed on Act or State securities laws, clearance with the NASDAQ Global MarketNASD and such other consent, subject to official notice of issuance.
approval, authorization or order as has been obtained and is in full force and effect; and (hd) FINRA shall have confirmed that it has not raised any objection with respect to the fairness execution and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date delivery of this Agreement, the Representatives shall have received an agreement substantially in consummation of the form of Annex A hereto signed by the persons listed on Schedule B heretotransactions herein contemplated, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale terms hereof will not conflict with, or constitute a default under, any material indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is now a party or by which it or its business or its properties may be bound or affected, the Certificate of Incorporation and any amendments thereto, the by-laws of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several UnderwritersCompany or any order, and at the time rule or regulation, writ, injunction or decree of signing this Agreement and on the Closing Dateany government, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereundergovernmental instrumentality, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicatedcourt, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying domestic or foreign, having jurisdiction over the Company or its business or properties, except for the SEC's position on indemnification of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseofficers and directors.
Appears in 3 contracts
Sources: Underwriting Agreement (Kids Stuff Inc), Underwriting Agreement (Kids Stuff Inc), Underwriting Agreement (Kids Stuff Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof, at the time of purchase and, if applicable, at each additional time of purchase, the performance by the Company of its obligations hereunder and to the following conditionsadditional conditions precedent:
(a) The Representative shall have received at the time of purchase and, if applicable, at each additional time of purchase, an opinion and a negative assurance letter of Loeb & Loeb LLP, counsel to the Company, each addressed to the Underwriters and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Underwriter, in form and substance satisfactory to the Representative.
(b) The Representative shall have received from M▇▇▇▇▇ LLP letters dated, respectively, the date of this Agreement, the date of the Prospectus, the time of purchase and, if applicable, each additional time of purchase, each addressed to the Underwriters (with executed copies for each Underwriter) in form and substance satisfactory to the Representative, which letters shall cover, without limitation, the various financial disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus.
(c) The Representative shall have received at the time of purchase and, if applicable, at each additional time of purchase, an opinion and a negative assurance letter of Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel to the Underwriters, each addressed to the Underwriters and dated the time of purchase or such additional time of purchase, as the case may be, in form and substance reasonably satisfactory to the Representative.
(d) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which either Representative shall have objected in writing.
(e) The Registration Statement, the Exchange Act Registration Statement and any registration statement required to be filed, prior to the sale of the Units, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus shall have been filed with the 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).
(f) Prior to and at the time of purchase, and, at the Closing Dateif applicable, each additional time of purchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no under the Act or proceedings for that purpose shall have been instituted before or, to the knowledge initiated under Section 8(d) or 8(e) of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing DateAct; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus and any all amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since neither the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and Preliminary Prospectus nor the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains shall include an untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein 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 Exempt Written Communications, 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.
(dg) On The Company will, at the time of purchase and, if applicable, at each Closing Date you shall have received additional time of purchase, deliver to the Representative a signed opinioncertificate of its Chief Executive Officer and its Chief Financial Officer, dated the time of purchase or such additional time of purchase, as of such datethe case may be, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to in the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the form attached as Exhibit A hereto.
(h) The Company shall have furnished to the Representative such counsel such other documents and certificates as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, accuracy and completeness of any statement in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, any Preliminary Prospectus or the Common Stock shall be listed on Prospectus as of the NASDAQ Global Markettime of purchase and, subject to official notice if applicable, each additional time of issuancepurchase, as the Representative may reasonably request.
(hi) The Company shall have furnished to the Representative or their counsel at the time of purchase executed copies of the Trust Agreement, the Warrant Agreement, the Subscription Agreement, the Private Placement Warrants Purchase Agreement, the Registration Rights Agreement, the Administrative Services Agreement, and the Insider Letter.
(j) The Units, the Ordinary Shares and the Public Warrants shall have been approved for listing on the NYSE, subject only to notice of issuance and evidence of satisfactory distribution at or prior to the time of purchase or each additional time of purchase, as the case may be.
(k) FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and or reasonableness of the underwriting terms and underwriting, or other arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriterstransactions, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisecontemplated hereby.
Appears in 3 contracts
Sources: Underwriting Agreement (JATT Acquisition Corp), Underwriting Agreement (JATT Acquisition Corp), Underwriting Agreement (JATT Acquisition Corp)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof, at the time of purchase and, if applicable, at the additional time of purchase, the performance by the Company of its obligations hereunder and to the following conditionsadditional conditions precedent:
(a) The Company shall furnish to the Representatives at the time of purchase and, if applicable, at the additional time of purchase, an opinion of Ellenoff ▇▇▇▇▇▇▇▇ & Schole 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 executed copies for each Underwriter, and in form and substance satisfactory to the Representatives.
(b) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated, respectively, the date of this Agreement, the date of the Prospectus, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Underwriters (with executed copies for each Underwriter) in the forms satisfactory to the Representatives, which letters shall cover, without limitation, the various financial disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus.
(c) The Representatives shall have received at the time of purchase and, if applicable, at the additional time of purchase, an opinion of Ropes& ▇▇▇▇ LLP, counsel for the Underwriters, dated the time of purchase or the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to the Representatives.
(d) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which either Representative shall have objected in writing.
(e) The Registration Statement, the Exchange Act Registration Statement and any registration statement required to be filed, prior to the sale of the Units, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus shall have been filed with the 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).
(f) Prior to and at the time of purchase, and, at if applicable, the Closing Dateadditional time of purchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no under the Act or proceedings for that purpose shall have been instituted before or, to the knowledge initiated under Section 8(d) or 8(e) of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing DateAct; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus and any all amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since neither the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and Preliminary Prospectus nor the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains shall include an untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein 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 Exempt Written Communications, 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.
(dg) On each Closing Date you shall have received The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to the Representatives a signed opinioncertificate of its Co-Chief Executive Officers, dated the time of purchase or the additional time of purchase, as of such datethe case may be, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to in the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the form attached as Exhibit A hereto.
(h) The Company shall have furnished to the Representatives such counsel such other documents and certificates as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, accuracy and completeness of any statement in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, any Preliminary Prospectus or the Common Stock shall be listed on Prospectus as of the NASDAQ Global Markettime of purchase and, subject to official notice if applicable, the additional time of issuancepurchase, as the Representatives may reasonably request.
(hi) The Company shall have furnished to the Representatives at the time of purchase executed copies of the Trust Agreement, the Warrant Agreement, the Sponsor Subscription Agreement, the Investor Subscription Agreement, the Private Placement Warrant Purchase Agreement, the Registration Rights Agreement and the Insider Letter.
(j) The Units, Common Stock and Public Warrants shall have been approved for listing on Nasdaq, subject only to notice of issuance and evidence of satisfactory distribution at or prior to the time of purchase or the additional time of purchase, as the case may be.
(k) FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and or reasonableness of the underwriting terms and underwriting, or other arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriterstransactions, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisecontemplated hereby.
Appears in 3 contracts
Sources: Underwriting Agreement (CIIG Capital Partners II, Inc.), Underwriting Agreement (CIIG Capital Partners II, Inc.), Underwriting Agreement (CIIG Capital Partners II, Inc.)
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are Underwriter to purchase and pay for the Units as provided herein shall be subject to the accuracy of the representations and warranties of the Company, in the case of the Firm Units, as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date), and in the case of the Option Units, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date); to the performance by the Company of its obligations hereunder; and to the satisfaction of the following conditionsadditional conditions on or before the First Closing Date in the case of the Firm Units and on or before the Second Closing Date in the case of the Option Units:
(a) The Registration Statement shall have become effective under not later than 4:00 p.m. Minneapolis, Minnesota time on the Act anddate of this Agreement, at the Closing Date, or such later date or time as shall be consented to in writing by you; no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares thereof shall have been issued and no proceedings for that purpose shall have been instituted before initiated or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated threatened by the Commission SEC or any state securities commission or “Blue Sky” commissioner similar regulatory body; and any request of the SEC for additional information (to be included in the Registration Statement or authoritythe Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriter and Underwriter's Counsel.
(b) At each Closing Date, (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 such Closing Date and the The Company shall not have performed all of advised the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) Underwriter that the Registration Statement, each preliminary prospectus and the Prospectus and any amendments Statement or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment thereof or supplement thereto, shall contain contains any untrue statement of a material fact or omit omits to state any a material fact which is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that this Section 5(b) shall not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by the Underwriter specifically for use in the preparation of the Registration Statement or the Prospectus, or any such amendment or supplement.
(iiic) Subsequent to the Effective Date and prior to each Closing Date, there shall not have beenoccurred any change, since or any development involving a prospective change, which materially and adversely affects the respective dates as of which information is given, no material adverse change in the Company's condition (financial or otherwise), businessearnings, operations, properties, business or business prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration StatementStatement or Prospectus, each preliminary prospectus and which, in the Underwriter's sole judgment, is material and adverse and that makes it, in the Underwriter's sole judgment, impracticable or inadvisable to proceed with the public offering of the Units as contemplated by the Prospectus and this Agreement.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, except changes that and the Registration Statement indicates might occur after the effective date registration, authorization, issue, sale and delivery of the Registration StatementUnits shall have been reasonably satisfactory to Underwriter's Counsel, and neither the Company nor any of its Subsidiaries Underwriter's Counsel shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the ordinary course of business other than as matters referred to or contemplated in the Registration Statement; and this Section.
(ive) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at On each Closing Date, a certificate the Underwriter shall have received the opinion of the principal executive officer ▇▇▇▇▇▇ and the principal financial or accounting officer of ▇▇▇▇▇▇, P.A., counsel for the Company, dated as of such Closing Date, evidencing compliance with satisfactory in form and substance to the provisions of this Subsection 5(b)Underwriter and Underwriter's Counsel, and confirming to the accuracy of the representations effect that:
(i) Each of the Company and the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement and Prospectus.
(ii) Each of the Company and the Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Subsidiaries considered as one enterprise. To the best of such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries.
(iii) The capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Securities." The issued and outstanding Shares of Common Stock of the Company have been duly and validly issued and are fully paid and non-assessable, and the holders thereof are not subject to any personal liability solely by reason of being such holders.
(iv) The Units to be issued by the Company pursuant to the terms of this Agreement, and the shares of Common Stock included in the Units, have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and non-assessable, and the holders thereof will not be subject to personal liability solely by reason of being such holders. The shares of Common Stock issuable upon exercise of the Redeemable Warrants included in the Units have been duly authorized and, when issued and delivered upon such exercise, will be duly and validly issued and fully paid and non-assessable, and the holders thereof will not be subject to personal liability solely by reason of being such holders. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of capital stock pursuant to the Company's articles of incorporation, bylaws or any agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound. To the best of such counsel's knowledge, except as set forth in Section 1 hereof the Prospectus, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of capital stock or other securities of the Company and confirming no such rights exist, other than those rights that all conditions set forth herein have been waived prior to the date hereof. To the best of such counsel's knowledge, except as described in the Registration Statement and Prospectus, there are no options, warrants, agreements, contracts or rights in existence to purchase or acquire from the Company any shares of capital stock of the Company.
(v) The Redeemable Warrants included in the Units to be met sold by the Company have been met duly and validly authorized and, when authenticated by the Warrant Agent and issued, delivered and sold in accordance with this Agreement and the Warrant Agreement dated as of such datethe date hereof between the Company and the Warrant Agent, will have been duly and validly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by judicial limitations on the right of specific performance. A sufficient number of shares of Common Stock of the Company has been reserved for issuance by the Company upon exercise of the Redeemable Warrants.
(cvi) No Underwriter shall The Underwriter's Warrants and the shares of Common Stock and Redeemable Warrants included in the Warrant Units have discovered been duly authorized. The Underwriter's Warrants, when issued and disclosed delivered to the Underwriter, will constitute valid and binding obligations of the Company prior in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by judicial limitations on the right of specific performance and except insofar as the indemnification provisions thereof may be limited by applicable law and the policies underlying such law. The shares of Common Stock included in the Warrant Units, when issued in accordance with the terms of this Agreement and pursuant to the Underwriter's Warrants, will be fully paid and nonassessable and subject to no preemptive rights or similar rights on the part of any Closing Date person or entity. The Redeemable Warrants included in the Warrant Units, when issued, delivered and sold in accordance with this Agreement and the Underwriter's Warrants, will have been duly and validly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium or similar laws effecting the rights of creditors generally and by judicial limitations on the right of specific performance. The shares of Common Stock issuable upon exercise of the Redeemable Warrants included in the Warrant Units have been duly authorized and, when issued and delivered upon such exercise, will be validly issued, fully paid and non-assessable and, to such counsel's knowledge, subject to no preemptive rights or similar rights on the part of any person or entity. A sufficient number of shares of Common Stock of the Company has been reserved for issuance by the Company upon exercise of the Underwriter's Warrants and the Redeemable Warrants included in the Warrant Units.
(vii) The Company has the requisite corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriter the Units to be issued and sold by it hereunder. This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Underwriter, is a valid, legal and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification and contribution provisions may be limited by applicable law or the public policies underlying such law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(viii) The Registration Statement has become effective under the Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is pending or threatened under the Securities Act.
(ix) The Registration Statement and the Prospectus, and each amendment thereof or supplement thereto (other than the financial statements, including the notes thereto and the supporting schedules, and other financial, numerical, statistical and accounting data derived therefrom, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(x) The forms of certificates evidencing the Common Stock and the Redeemable Warrants and filed as exhibits to the Registration Statement comply with Minnesota law.
(xi) The description in the Registration Statement and the Prospectus of the Company's articles of incorporation and bylaws and of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be presented by the Securities Act and the applicable Rules and Regulations; and to the best of such counsel's knowledge, there are no statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any agreements, contracts, leases or documents of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required.
(xii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated (other than performance of the Company's indemnification and contribution obligations hereunder, concerning which no opinion need be expressed) do not result in any violation of the Company's articles of incorporation or bylaws or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other material agreement or instrument known to such counsel to which the Company is a party or by which its properties are bound, or any applicable statute, rule or regulation known to such counsel or, to the best of such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or the Subsidiaries or over any of their material properties or operations.
(xiii) To the best of such counsel's knowledge, no consent, approval, authorization or order of, or filing with, or qualification with, any court, government or governmental agency or body is necessary in connection with the execution, delivery and performance of this Agreement or for the execution, delivery and performance of this Agreement or for the consummation of the transactions herein contemplated, except such as have been obtained under the Securities Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and the distribution of the Units by the Underwriter.
(xiv) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Securities Act or the Rules and Regulations, other than those described therein.
(xv) To the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is presently (A) in violation of its respective articles of incorporation or bylaws, (B) in material breach or violation of any applicable statute, rule or regulation known to such counsel or any order, writ or decree of any court or governmental agency or body, or (C) in breach of or otherwise in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, loan agreement or any other material contract, lease or other instrument to which the Company is subject or by which it may be bound, or to which any of the material assets or property of the Company is subject.
(xvi) On the basis of information obtained as a result of discussions and meetings with officers and other representatives of the Company, discussions with representatives of the independent public accountants for the Company in connection with the preparation of the Registration Statement and the Prospectus, and the examination of other information and documents requested by such counsel, nothing has come to such counsel's attention that has caused them to believe that the Registration Statement, any preliminary prospectus or the Prospectus or Statement and any amendment or supplement theretothereof, contains an at the time it became effective and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statementand any amendment or supplement thereto, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any first date of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (Medicalcv Inc), Underwriting Agreement (Medicalcv Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters to purchase and pay for the Units which the Underwriters have agreed to purchase hereunder are subject to to: the following conditions:
(a) The Registration Statement shall have become effective under accuracy, as of the Act and, at date hereof and as of the Closing DateDates, no stop order suspending the effectiveness of the Registration Statement or the qualifications all of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (i) the representations and warranties of the Company contained in this Agreement shall be true and correct with Agreement; the same effect as if made on and as of such Closing Date and the Company shall have performed Company's compliance with, or performance of, all of the obligations its covenants, undertakings and agreements contained in this Agreement that are required to be complied with all or performed on or prior to each of the conditions hereunder on its part Closing Dates and to be performed or complied with on the following additional conditions:
(a) On or prior to the Closing Date, no order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or be pending or, to the knowledge of the Company, shall be threatened by the Commission; any request for additional information on the part of the Commission (iito be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission; and neither the Registration Statement nor any amendment thereto shall have been filed to which counsel to the Underwriters shall have reasonably objected, in writing.
(b) The Representative shall not have disclosed in writing to the Company that the Registration Statement or Prospectus or any amendment or supplement thereto contained, as of the date thereof, an untrue statement of a fact which, in the opinion of counsel to 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 materially misleading.
(c) Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(d) Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, licenses, permits, operations or financial condition or income of the Company.
(e) Except as contemplated herein or as set forth in the Registration Statement and Prospectus, during the period subsequent to the Effective Date and prior to the Closing Date, (A) the Company shall have conducted its business in the usual and ordinary manner as the same was being conducted on the date of the filing of the initial Registration Statement and (B) except in the ordinary course of its business, the Company shall not have incurred any material liabilities or obligations (direct or contingent), or disposed of any of its assets, or entered into any material transaction, and (C) the Company shall not have suffered or experienced any material adverse change in its business, affairs or in its condition, financial or otherwise. On the Closing Date, the capital stock and surplus accounts of the Company shall be substantially as great as at its last financial report without considering the proceeds from the sale of the Units except to the extent that any decrease is disclosed in or contemplated by the Prospectus.
(f) The authorization of the Units, the Common Stock and the Warrants, the Registration Statement, each preliminary prospectus and the Prospectus and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Underwriters.
(g) The Company shall have furnished to the Representative the opinions, dated the Closing Date, and Additional Closing Date(s), addressed to you, of Tolins & Lowenfels counsel for the Company, that:
(i) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the Registration Statement and Prospectus; it has authorized and outstanding capital as set forth in the Registration Statement and Prospectus; and the Company is duly licensed or qualified as a foreign corporation in all jurisdictions in which the ownership or leasing of its properties requires such qualification or license, except where failure to be so qualified or licensed would have no material adverse effect on the business of the Company.
(ii) All of the outstanding shares of Common Stock are duly authorized, validly issued, fully paid, and non-assessable, and do not have any amendments preemptive rights. The Company will have duly authorized, reserved and set aside shares of Common Stock issuable upon exercise of the Warrants and any other outstanding options, warrants or supplements thereto shall stock option plans and when issued in accordance with the terms contained therein against payment therefor, will be duly and validly issued, fully paid and non-assessable.
(iii) The Common Stock, Warrants and the Underwriter's Unit Warrant conform to descriptions thereof under "Description of Securities" contained in the Prospectus.
(iv) The Underwriters will receive good and marketable title to the Units purchased by them from the Company in accordance with the terms and provisions of this Agreement, to the best of such counsel's knowledge, free and clear of all liens, encumbrances, claims, security interests, restrictions, stockholders' agreements and voting trusts whatsoever.
(v) Except as set forth in the Prospectus, there are no outstanding options, warrants, or other rights, providing for the issuance of, and, to the best of the knowledge of such counsel, no commitments, plans or arrangements to issue, any shares of any class of capital stock of the Company, or any security convertible into, or exchangeable for, any shares of any class of capital stock of the Company.
(vi) To the best of such counsel's knowledge, no consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the valid authorization, issue or sale of the Units hereunder, except such as may be required under the Act or state securities or Blue Sky Laws.
(vii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose have been instituted or are pending before or threatened by, the Commission;
(viii) To the best of such counsel's knowledge and based upon the investigation described below, the Registration Statement and Prospectus, and each amendment thereof and supplement thereto, comply as to form in all material respects conform to with the applicable requirements of the Act and the Rules and RegulationsRegulations (except that no opinion need be expressed as to financial statements, notes thereto, and neither financial data contained in the Registration Statement or Prospectus). Such counsel has participated in conferences with officers and representatives of the Company and with its certified public accountants in the preparation of the Registration Statement and the Prospectus. At such conferences counsel has made inquiries of such officers, representatives and accountants, and discussed the contents of the Registration Statement and the Prospectus. Such counsel has not independently verified, and, accordingly, does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement or the Prospectus, other than as set forth the Prospectus insofar as such statements relate to the contents of particular documents therein described. On the basis of the foregoing, nothing has come to the attention of such counsel to cause such counsel to believe that the Registration Statement, any preliminary prospectus or the Prospectus, Prospectus or any amendment or supplement thereto, shall contain thereto contains 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any a material fact required to be stated therein or necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the case of both the Registration Statement and any amendment thereto and the Prospectus and any supplement thereto, for the financial statements, notes thereto and other financial and statistical data and schedules contained therein, as to which such counsel need express no opinion); and such counsel is familiar with all contracts referred to in the Registration Statement or in the Prospectus and such contracts are sufficiently summarized or disclosed therein, or filed as exhibits thereto, as required, and such counsel does not know of any other contracts required to be summarized or disclosed or filed; and such counsel does not know of any legal or governmental proceedings to which the Company is a party, or in which property of the Company is the subject, of a character required to be disclosed in the Registration Statement or the Prospectus which are not so disclosed therein.
(ix) The statements therein in the Registration Statement under the caption Business Facilities" have been reviewed by such counsel and insofar as they refer to descriptions of agreements, statutes, licenses, certifications, rules or regulations or legal conclusions, are correct in all material respects.
(x) This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors rights generally and except that no opinion need be given with regard to the enforceability of Section 9 hereof or the availability of equitable relief.
(xi) To the best knowledge of such counsel: (a) no default exists, and no event has occurred which, with notice or lapse of time, or both, would constitute a default in the due performance and observance of any material term, covenant or condition by the Company, of any indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its business or its properties may be bound or affected, except where such default would not misleading.have a material adverse effect on the business of the Company and except as disclosed in the Prospectus; (b) the Company has full power and lawful authority to authorize, issue and sell the Units on the terms and conditions set forth herein and in the Registration Statement and in the Prospectus; (c) no consent, approval, authorization or other order of any regulatory authority is required for such authorization, issue or sale, except as may be required under the Act or State securities laws, clearance with the NASD and such other consent, approval, authorization or order as has been obtained and is in full force and effect; and
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings execution and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date delivery of this Agreement, the Representatives shall have received an agreement substantially in consummation of the form of Annex A hereto signed by the persons listed on Schedule B heretotransactions herein contemplated, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale terms hereof will not conflict with, or constitute a default under, any material indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is now a party or by which it or its business or its properties may be bound or affected, the Certificate of Incorporation and any amendments thereto, the by-laws of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunderCompany, or proceedings at the Closing Date. If any order, rule or regulation, writ, injunction or decree of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicatedany government, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying governmental instrumentality, or court, domestic or foreign, having jurisdiction over the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date its business or otherwiseproperties.
Appears in 2 contracts
Sources: Underwriting Agreement (Worldwide Wireless Inc), Underwriting Agreement (Worldwide Wireless Inc)
Conditions of the Underwriters’ Obligations. (A) The several obligations of the Underwriters to purchase the Notes hereunder on the initial Closing Date are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the initial sale of the Notes shall have been duly taken or made. At and prior to the initial Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a whole, from that set forth in the Servicer or NLS not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Underwriters, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of trusts sponsored by the Company, the Servicer or NLS by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by the Company, the Servicer or NLS (other than an announcement with positive implications of a possible upgrading, and the Prospectusno implication of a possible downgrading, except changes that of such rating), or (iii) any event or development which makes any statement made in the Registration Statement indicates might occur after or Prospectus untrue or which, in the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as of such date, an opinion addressed to you of ▇▇▇▇▇▇, ▇ ▇▇▇▇ LLP, in its capacity as counsel to the Company, dated the initial Closing Date, in form and substance satisfactory to you and your counsel with respect to the Indenture, Custodian Agreement, this Agreement, the Servicing Agreement, the Auction Agent Agreement and the Administrative Services Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇ & Markiles ▇▇▇▇ LLP, in its capacity as counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably and substance satisfactory to counsel for the Underwritersyou and your counsel, together with signed or photostatic copies thereof for each of the concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel Transferors to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 2 contracts
Sources: Underwriting Agreement (Nelnet Education Loan Funding Inc), Underwriting Agreement (Nelnet Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase and pay for the Underwriters' Securities are subject to the following conditions:
(a) The No order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission and any request for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have become effective under been complied with to the Act andreasonable satisfaction of the Underwriters or the Representatives.
(b) Subsequent to the execution of this Agreement, (i) there shall not have been any change in the capital stock or long term debt of the Company and its subsidiaries, (ii) there shall not have been any change on a consolidated basis in the general affairs, management, financial position or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and Prospectus, (iii) the Company and its subsidiaries shall not have sustained any material loss or interference with their business taken as a whole from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and Prospectus, (iv) no downgrading shall have occurred in the rating accorded the Company's debt securities by Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. and (v) if the Underwriters' Securities are denominated in a currency or currencies other than United States Dollars, there shall not have occurred any action by any governmental authority or any change involving currency exchange rates or exchange controls, if in the reasonable judgment of a majority in interest of the Underwriters or the Representatives any such development referred to in clause (i), (ii), (iii), (iv) or (v) is so material and adverse as to make it impracticable or inadvisable to consummate the sale and delivery of the Underwriters' Securities by the Underwriters as contemplated in the Prospectus.
(c) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date and the Company shall have performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date.
(d) The Underwriters or the Representatives shall have received on the Closing Date a certificate, dated the Closing Date, of the Chairman of the Board, the Vice Chairman of the Board, the President, any Vice President or the Treasurer and the chief financial or chief accounting officer of the Company, which shall certify that (i) no stop order suspending the effectiveness of the Registration Statement or prohibiting the qualifications sale of the Shares shall have Purchased Securities has been issued and no proceedings for that such purpose shall have been instituted are pending before or, to the knowledge of the Company or the Representativessuch officers, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authority.
and (b) At each Closing Date, (iii) the representations and warranties of the Company contained in this Agreement shall be herein are true and correct with the same effect as if made on and as of such the Closing Date and the Company shall have has performed all of the obligations covenants and complied with all of the conditions hereunder agreements herein contained to be performed on its part to be performed or complied with on at or prior to the Closing Date.
(e) Within 24 hours after the execution of the Underwriting Agreement by the Company (or at such later time acceptable to the Representatives, or if there are none, such firm as may be designated by a majority in interest of the Underwriters) and on the Closing Date, the Representatives or such designated firm shall have received signed letters from Ernst & Young, dated the date of delivery, (i) in the case of the first such letter, substantially identical to the proposed form of such letter previously delivered to the Representatives or such designated firm; and (ii) in the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements case of the Act and second such letter, confirming, on the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall contain any untrue statement basis of a material fact or omit to state any material fact required to be stated therein or necessary to make review in accordance with the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that procedures set forth in the Registration Statementfirst such letter, each preliminary prospectus and that nothing has come to their attention from the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither most recent financial statements of the Company nor filed with the Commission, audited or interim, as the case may be, to a date not more than six days prior to the Closing Date which would require any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not change in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be first such letter if it were required to be set forth dated and delivered on the Closing Date, except in each case as described in the Registration Statement, and no proceedings shall be pending or, to second such letter.
(f) The Underwriters or the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you Representatives shall have received at each Closing Date, a certificate of on the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇ & Markiles LLPLLP an opinion, counsel dated the Closing Date, substantially identical to the several Underwriters, with respect to the sufficiency form of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents their opinion attached hereto as they may have reasonably requested for the purpose of enabling them to pass upon such matters.Annex A.
(eg) On each Closing Date you The Underwriters or the Representatives shall have received on the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, Date from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇▇▇▇, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of , opinions dated the effective date of Closing Date, with respect to the Company, the Underwriters' Securities, the Registration Statement, the Common Stock Statement and Prospectus and this Agreement. Such opinions shall be listed on satisfactory in all respects to the NASDAQ Global MarketUnderwriters or the Representatives, subject and the Company shall have furnished to official notice counsel for the Underwriters such documents as they may reasonably request for the purpose of issuanceenabling them to render such opinions.
(h) FINRA Subsequent to execution of this Agreement there shall not have confirmed that it has not raised occurred any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringfollowing: (x) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or (y) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities.
(i) At The Company shall have complied with the provisions of Section 6(d) hereof with respect to the furnishing of prospectuses on the New York business day next succeeding the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (Sonat Inc), Underwriting Agreement (Sonat Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholeSLC, from that set forth in SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Cadwalader, dated as of such dateWickersham & Taft LLP, of ▇▇▇▇▇▇or other counsel satisfactory to you, ▇▇▇▇▇da▇▇▇ & Markiles LLP▇▇▇ ▇▇osi▇▇ ▇ate, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Company Eligible Lender Trust Agreement, the Indenture, the Trust Agreement, and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Cadwalader, datedWickersham & Taft LLP, respectivelyin its capacity as counsel for the Compa▇▇, as of each such date, from ▇▇ ▇▇▇▇▇▇m a▇▇ & Company Certified Public Accountants PC▇ubstance satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Trust Student Loans from the date of this AgreementSLC to SLC Receivables, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel SLC Receivables to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseIndenture Trustee.
Appears in 2 contracts
Sources: Underwriting Agreement (SLC Student Loan Receivables I Inc), Underwriting Agreement (SLC Student Loan Trust 2005-1)
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are to purchase and pay for the Shares as provided herein shall be subject to the accuracy of the representations and warranties of the Company, in the case of the Firm Shares, as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date), and in the case of the Option Shares, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date); to the performance by the Company of its obligations hereunder; and to the satisfaction of the following conditionsadditional conditions on or before the First Closing Date in the case of the Firm Shares and on or before the Second Closing Date in the case of the Option Shares:
(a) The Registration Statement shall have become effective under not later than 4:00 p.m. Minneapolis, Minnesota time on the Act anddate of this Agreement, at or such later date or time as shall be consented to in writing by you (the Closing "Effective Date, "); and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares thereof shall have been issued and no proceedings for that purpose shall have been instituted before initiated or, to the knowledge of the Company Company, or any of the RepresentativesUnderwriters, shall be contemplated threatened by the Commission SEC or any state securities commission or “Blue Sky” commissioner similar regulatory body; and any request of the SEC for additional information (to be included in the Registration Statement or authoritythe Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriters and Underwriters' Counsel.
(b) At each Closing DateThe Underwriters shall not have advised the Company that the Registration Statement or Prospectus, (i) or any amendment thereof or supplement thereto, contains any untrue statement of a fact which is material or omits to state a fact which is material and is required to be stated therein or is necessary to make the representations and warranties statements contained therein, in light of the Company contained in circumstances under which they were made, not misleading; provided, however, that this Agreement Section 5(b) shall be true not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and correct with the same effect as if made on and as of such Closing Date and conform to written information furnished to the Company shall have performed all by the Underwriters specifically for use in the preparation of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus Statement or the Prospectus, or any such amendment or supplement theretosupplement.
(c) Subsequent to the Effective Date and prior to each Closing Date, 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; (iii) there shall not have beenoccurred any change, since or any development involving a prospective change, which materially and adversely affects the respective dates as of which information is given, no material adverse change in the Company's condition (financial or otherwise), businessearnings, operations, properties, business or business prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration StatementStatement or Prospectus, each preliminary prospectus and which, in the Representative's sole judgment, is material and adverse and that makes it, in the Representative's sole judgment, impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus and this Agreement.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, except changes that and the Registration Statement indicates might occur after the effective date registration, authorization, issue, sale and delivery of the Registration StatementShares, shall have been reasonably satisfactory to Underwriters' Counsel, and neither the Company nor any of its Subsidiaries such counsel shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the ordinary course of business other than as matters referred to or contemplated in the Registration Statement; and this Section.
(ive) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at On each Closing Date, a certificate the Underwriters shall have received the opinion of the principal executive officer and the principal financial or accounting officer of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated as of such Closing Date, evidencing compliance with satisfactory in form and substance to the provisions of this Subsection 5(b)Underwriters and Underwriters' Counsel, and confirming to the accuracy of the representations effect that:
(i) Each of the Company set forth and the Subsidiaries has been duly incorporated and is validly existing as a corporation in Section 1 hereof good standing under the laws of the jurisdiction of its incorporation and confirming that all conditions set forth herein has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement and Prospectus.
(ii) Each of the Company and the Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be met by so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Subsidiaries considered as one enterprise. To the best of such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries.
(iii) The capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Securities." The issued and outstanding shares of capital stock of the Company have been met as duly and validly issued and are fully paid and nonassessable, and the holders thereof are not subject to any personal liability by reason of being such dateholders.
(civ) No Underwriter shall have discovered and disclosed The Shares to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being such holders. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's articles of incorporation, by-laws or any agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound. To the best of such counsel's knowledge, except as set forth in the Prospectus, neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company and no such rights exist, other than those rights that have been waived prior to any Closing Date that the date hereof. To the best of such counsel's knowledge, except as described in the Registration StatementStatement and Prospectus, there are no options, warrants, agreements, contracts or rights in existence to purchase or acquire from the Company any preliminary prospectus shares of capital stock of the Company.
(v) The Company has the requisite corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by it hereunder. This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Representative on behalf of the Underwriters, is a valid, legal and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification and contribution provisions may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(vi) The Registration Statement has become effective under the Prospectus Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose has been instituted or any is pending or threatened under the Securities Act.
(vii) The Registration Statement and the Prospectus, and each amendment thereof or supplement thereto, contains (other than the financial statements, including the notes thereto and the supporting schedules, and other financial, numerical, statistical and accounting data derived therefrom, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(viii) The form of certificates evidencing the Common Stock and filed as an exhibit to the Registration Statement complies with Nebraska law.
(ix) The description in the Registration Statement and the Prospectus of the Company's articles of incorporation and bylaws and of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be presented by the Securities Act and the applicable Rules and Regulations; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any agreements, contracts, leases or documents of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required.
(x) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated do not result in any violation of the Company's articles of incorporation or bylaws or, to the best of such counsel's knowledge, result in a breach or violation of any of the terms and provisions of, or constitute a default under, any bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other material agreement or instrument known to such counsel to which the Company is a party or by which its properties are bound, or any applicable statute, rule or regulation known to such counsel or, to the best of such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or the Subsidiaries or other any of their material properties or operations.
(xi) To the best of such counsel's knowledge, no consent, approval, authorization or order of, or filing with, or qualification with, any court, government or governmental agency or body is necessary in connection with the execution, delivery and performance of this Agreement or for the execution, delivery and performance of this Agreement or for the consummation of the transactions herein contemplated, except such as have been obtained under the Securities Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and the distribution of the Shares by the Underwriters.
(xii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Securities Act or the Rules and Regulations, other than those described therein.
(xiii) To the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is presently (A) in material violation of its respective articles of incorporation or bylaws, (B) in breach or violation of any applicable statute, rule or regulation known to such counsel or any order, writ or decree of any court or governmental agency or body, or (C) in breach of or otherwise in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, loan agreement or any other material contract, lease or other instrument to which the Company is subject or by which it may be bound, or to which any of the material assets or property of the Company is subject.
(xiv) To the best of such counsel's knowledge, the Company holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any government or self-regulatory body required for the conduct of its business, and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect.
(xv) On the basis of information obtained as a result of discussions and meetings with officers and other representatives of the Company, discussions with representatives of the independent public accountants for the Company in connection with the preparation of the Registration Statement and the Prospectus, and the examination of other information and documents requested by such counsel, nothing has come to such counsel's attention that has caused them to believe that the Registration Statement and any amendment thereof, at the time it became effective and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, and any amendment or supplement thereto, at the first date of its issuance and up to and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may further state that in making the foregoing comments, such counsel does not intend them to include or cover the financial statements and notes thereto and related schedules and other financial, numerical, statistical and accounting data contained or omitted from the Registration Statement and any amendment or supplement thereto and the Prospectus. Counsel rendering the foregoing opinion may rely as to questions of law not involving the laws of the United States or the States of Minnesota and Nebraska, upon opinions of local counsel, and, as to questions of fact, upon representations or certificates of officers of the Company or its Subsidiaries and of government officials, in which case their opinion is to state the extent of such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Representative and to Underwriters' Counsel.
(df) On each Closing Date you Date, the Underwriters shall have received a signed opinionthe opinion of Brown, dated as of such dateMartin, of ▇▇▇▇▇▇, ▇▇ and ▇▇▇▇▇▇▇ & Markiles LLP, intellectual property and patent counsel for the Company, dated as of such Closing Date, satisfactory in form and substance to the several Underwriters and Underwriters' Counsel, to the effect that:
(i) To the best of such counsel's knowledge, neither the Company nor any Subsidiary requires any United States or foreign patent for the conduct of its business as presently conducted, except as may be disclosed in the Registration Statement and Prospectus;
(ii) The Company has not received any notice of claim by a third party asserting infringement or violation of its Proprietary Rights, and such counsel is not aware that the Company or any Subsidiary is infringing or otherwise violating the Proprietary Rights of others; and
(iii) Such counsel has reviewed the Registration Statement and Prospectus and each amendment and supplement thereto filed by the Company prior to such Closing Date, and such counsel has no reason to believe that insofar as concerns Proprietary Rights owned by or affecting the business or operations of the Company and any Subsidiary, either the Registration Statement or the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading.
(g) The Underwriters shall have received from Winthrop & Weinstine, P.A., Underwriters' Counsel, such opinion or opinions as the Underwriters may reasonably require, dated as of the First Closing Date and the Second Closing Date, which are satisfactory in form and substance to the Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (Eco Soil Systems Inc), Underwriting Agreement (Eco Soil Systems Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholeSLC, from that set forth in SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Cadwalader, Wickersham & Taft, or other counsel satisfactory to you, dated as of such date, of ▇▇▇ ▇▇▇▇▇▇, g D▇▇▇▇▇▇▇▇ & Markiles LLP, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Sale Agreements, Servicing Agreement, Indenture, Trust Agreement, Auction Agency Agreement, Broker-Dealer Agreement, and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Cadwalader, datedWickersham & Taft, respectivelyin its capacity as counsel for the Company, as of each such date, from ▇▇ ▇▇▇▇ ▇▇d s▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCance satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Student Loans from the date of this AgreementSLC to SLC Receivables, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel SLC Receivables to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 2 contracts
Sources: Underwriting Agreement (SLC Student Loan Asset Backed Notes Series 2002-2), Underwriting Agreement (SLC Student Loan Receivables I Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy, on the date hereof and on the Delivery Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to the satisfaction of each of the following conditionsadditional conditions and agreements:
(a) The Registration Statement Prospectus, and any free writing prospectus that is required to be filed with the Commission pursuant to Rule 433(d) of the Securities Act, shall have become effective under been timely filed with the Act and, at the Closing Date, Commission in accordance with Section 5A(a) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted before or, to initiated or threatened by the knowledge Commission; and any request of the Company Commission for inclusion of additional information in the Registration Statement or the Representatives, Prospectus or otherwise shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityhave been complied with in all material respects.
(b) At each Closing Date, (i) the representations No Underwriter shall have discovered and warranties of disclosed to the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing date hereof or the Delivery Date; (ii) , that, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, any part of the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, Statement or any amendment or supplement thereto, shall contain any contained, as of its Effective Date or as of the Delivery Date, an untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial misleading or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date Time of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Sale Prospectus or the Prospectus or any amendment or supplement thereto, contains and will contain, as of the date hereof and the Delivery Date, an untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits and will omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus, this Agreement and the Shares, and all other legal matters relating to the offering, issuance and sale of the Shares and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel to the Underwriters.
(d) On each Closing Date you ▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the Company, shall have received a signed furnished to the Underwriters its written opinion, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect that:
(i) Such counsel has been advised that the Registration Statement was effective under the Securities Act; each of the Preliminary Prospectus, the free writing prospectus(es) identified in Item 1 of Schedule 2 and the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) and Rule 433 of the Securities Act, as the case may be, specified in such opinion on the date specified therein; and, based solely upon an oral acknowledgement by the staff of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission.
(ii) The Registration Statement, the Preliminary Prospectus, the free writing prospectus(es) identified in Item 1 of Schedule 2 and the Prospectus (excluding any documents incorporated by reference therein) and any further amendments or supplements thereto made by the Company prior to the applicable Delivery Date (other than the financial statements and related notes and schedules and the other financial, statistical and accounting data included or incorporated therein or omitted therefrom, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the applicable requirements of the Securities Act.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The statements made in the Time of Sale Prospectus and the Prospectus under the caption “Description of Common Stock” (including any statements under the applicable caption “Description of Capital Stock of RGA” in the base prospectus included in the Prospectus), insofar as such statements constitute summaries of the terms of the Common Stock, are accurate in all material respects (except for any financial, statistical or accounting data included or incorporated therein or omitted therefrom, as to which such counsel need express no opinion) and the Shares conform in all material respects to the description thereof in the Time of Sale Prospectus and the Prospectus.
(v) The statements made in the Time of Sale Prospectus and the Prospectus under the caption “Material United States Federal Income and Estate Tax Considerations for Non-United States Holders” insofar as such statements constitute summaries of United States federal tax law and regulations or matters of law, are accurate in all material respects.
(vi) The execution and delivery by the Company of this Agreement, the issuance and sale of the Shares by the Company and the consummation by the Company of its obligations hereunder do not result in any violation by the Company of any U.S. federal or Missouri statute, rule or regulation that such counsel, based on its experience, reasonably recognizes as being applicable to the Company in a transaction of this type, or, to such counsel’s knowledge, any order of any U.S. federal or Missouri state court or governmental authority or regulatory body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except in each case for such violations that would not be reasonably expected to result in a Material Adverse Effect.
(vii) The Shares have been duly authorized for issuance by the Company and, upon the issuance and delivery of the Shares and the receipt by the Company of all consideration therefor in accordance with the terms of this Agreement, such Shares will be validly issued, fully paid and nonassessable.
(viii) No consent, approval, authorization or other action by, and no notice to or filing with, any U.S. federal or Missouri governmental authority or regulatory body is required for the execution and delivery by the Company of this Agreement, the issuance and sale of the Shares by the Company and the consummation by the Company of its obligations hereunder, except such consents, approvals, authorizations or other actions which have been obtained or made or, with respect to a current report on Form 8-K and any free writing prospectus required to be filed with the Commission in connection with the issuance and sale of the Shares, will be made, or except as may be required under state securities or Blue Sky Laws or the rules of the FINRA in connection with the purchase and distribution of the Shares by the Underwriters, as to which such counsel need express no opinion. In addition, the opinions of such counsel described in this paragraph (d) shall be rendered to the Underwriters at the request of the Company and shall so state therein. Such opinions may recite that no opinion is expressed with respect to, and that such counsel is not passing upon, and does not assume responsibility for any matters relating to insurance laws, statutes, rules or regulations. In addition, such opinions may contain customary recitals, conditions and qualifications. In addition, such counsel shall state that, during the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus, it has participated in conferences with officers and other representatives of the Company, representatives of Deloitte & Touche, the Underwriters and their counsel, at which conferences the contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus and related matters were discussed, reviewed and revised. On the basis of the information which was developed in the course thereof, but without independent review or verification, although such counsel is not passing upon, and does not assume responsibility for, the accuracy, completeness or fairness of such statements contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus (except as indicated above), on the basis of the information which was developed in the course thereof, considered in light of such counsel’s understanding of applicable law and experience such counsel has gained through its practice thereunder, such counsel will advise the Underwriters that nothing has come to such counsel’s attention which causes such counsel to believe that:
1. each part of the Registration Statement, as of the Effective Date and as of the date hereof (except as to financial statements and related notes, financial, statistical and accounting data and supporting schedules included or incorporated by reference therein or omitted therefrom, as to which such datecounsel may express no belief), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading; or
2. the Time of Sale Prospectus, as of 6:00 p.m., New York City time, on the date hereof (which you have informed us is the time of first use of the free writing prospectus identified in item 1 of Schedule 2) and, as amended or supplemented, if applicable, as of the Delivery Date, or the Prospectus, as of its date and as of the Delivery Date, except as aforesaid, contained or contains any untrue statement of a material fact or omitted or omits 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 were made, not misleading.
(e) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPEsq., counsel Senior Vice President and Associate General Counsel of the Company, shall have furnished to the several Underwriters his written opinion, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Underwriters, with respect substantially to the sufficiency effect that:
(i) Each of the Company and its Significant Subsidiaries which is incorporated in the United States has been duly incorporated and is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation, has all requisite corporate proceedings power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in each of the Time of Sale Prospectus and the Prospectus, and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction described in Schedule 4 in which the ownership, leasing and operation of its property and the conduct of its business requires such qualification (except where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect).
(ii) The entities listed on Schedule 3 hereto are the only subsidiaries, direct or indirect, of the Company. Except as otherwise set forth in each of the Time of Sale Prospectus and the Prospectus, the Company owns, directly or indirectly through other legal matters relating subsidiaries, the percentage indicated on Schedule 3 of the outstanding capital stock or other securities evidencing equity ownership of such subsidiaries, free and clear of any security interest and, to the knowledge of such counsel, any claim, lien, limitation on voting rights or encumbrance; and all of such securities have been duly authorized, validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights. There are no outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or instruments convertible into or exchangeable for, any such shares of capital stock or other equity interest of such subsidiaries owned by the Company.
(iii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, including, without limitation, the corporate power and authority to issue, sell and deliver the Company shall have furnished to such counsel such documents Shares as they may have reasonably requested for the purpose of enabling them to pass upon such mattersprovided herein.
(eiv) On each Closing Date you shall have received Except as set forth in the signed opinionTime of Sale Prospectus and the Prospectus, dated as 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 such date, of K&L Gates LLP, counsel Common Stock pursuant to the Company’s articles of incorporation or by-laws or any agreement or other instrument known to such counsel.
(v) The Company had an authorized capitalization as of September 30, 2008 as set forth in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for section headed “Capitalization” of each of the Time of Sale Prospectus and the Prospectus, and all issued shares of capital stock of the Company (other Underwritersthan the Shares), have been duly and validly authorized and issued by the Company and are fully paid and non-assessable.
(fvi) At To the time knowledge of such counsel, neither the signing Company nor any of this Agreement and on each Closing Dateits Significant Subsidiaries which are incorporated in the United States is (i) in violation of its respective charter or bylaws, you shall have received (ii) is in default in the performance of any obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or in any other instrument, indenture, mortgage, deed of trust, retrocessional treaty or arrangement, or other material agreement to which it is a signed letterparty or by which it is bound or to which any of its properties is subject or (iii) is in violation of any U.S. federal or Missouri law, datedstatute, respectivelyrule, as of each such dateregulation, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed judgment or court decree applicable to the Underwriters (with executed copies for each of the Underwriters) Company or its Significant Subsidiaries which are incorporated in the form heretofore approved by counsel United States, except in the case of clauses (ii) and (iii) for the Underwritersany such violation or default which would not reasonably be expected to have a Material Adverse Effect.
(gvii) As of The execution and delivery by the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date Company of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer issuance and sale of the Shares hereunder, and the consummation by the Company of the transactions contemplated hereby will not violate or proceedings at the Closing Date. If constitute a breach of any of the conditions herein terms or provisions of, or a default under (or an event that with notice or the lapse of time, or both, would constitute a default), or require consent under, or result in the imposition of a lien or encumbrance on any properties of the Company or any of its Significant Subsidiaries which are incorporated in the United States, or an acceleration of indebtedness pursuant to, (i) the charter or bylaws of the Company or any of its Significant Subsidiaries which are incorporated in the United States, (ii) any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument known to such counsel to which the Company or any of its Significant Subsidiaries which are incorporated in the United States is a party or by which any of them or their property is or may be bound, (iii) any U.S. federal or Missouri statute, rule or regulation reasonably recognized by such counsel as applicable to the Company in transactions of this kind, or (iv) any judgment, order or decree known to such counsel of any U.S. federal or Missouri court or governmental agency or authority having jurisdiction over the Company, any of its Significant Subsidiaries which are incorporated in the United States or their assets or properties, other than compliance by the Company with securities and corporation laws, as applicable, as to which such counsel need not express any opinion, except for any such violations, breaches or defaults which would not reasonably be expected to have a Material Adverse Effect, and provided, that such opinion may be subject to the qualification that the rights to indemnification or contribution provided for in this Section shall not herein may be violative of public policy underlying certain laws, rules or regulations (including federal and state securities laws, rules or regulations) and except for such consents as may have been fulfilled obtained by the Company or such consents or filings as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled required under state or foreign securities or Blue Sky laws and regulations or such as may be required by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing DateFINRA. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunderNo consent, whether in respect of the First Closing Dateapproval, an Additional Closing Date or otherwise.au
Appears in 1 contract
Sources: Underwriting Agreement (Reinsurance Group of America Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are to purchase and pay for the Securities as provided herein shall be subject to the accuracy in all material respects, as of the date of the Terms Agreement and the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective under the Act and, at the Closing Date, no No stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings proceeding for that purpose shall have been instituted before or, to the knowledge of the Company or the Representativesany Underwriter, shall be contemplated threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or any state securities the Prospectus or “Blue Sky” commissioner or authorityotherwise) shall have been complied with to your satisfaction.
(b) At each Closing Date, (i) the representations and warranties of No Underwriter shall have advised the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) that the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in your opinion is material, or omits to state a fact which in your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, on a consolidated basis, in the capital stock, short-term debt, long-term debt, ratio of earnings to fixed changes, accounts receivable, total assets, total revenue or total net income of the Company and its subsidiaries, in the condition (financial or other), or in the earnings, affairs or business prospects of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, or any change in the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company which, in your judgment, makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Prospectus.
(d) The Company shall have furnished you the opinion of Counsel to the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Delaware, and is duly qualified to do business as a foreign corporation and in good standing in each State or other jurisdiction in which such qualification is required or, if it is not so qualified in any jurisdiction, such failure so to qualify will not have a material adverse effect on the business or financial condition of the Company;
(ii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms subject to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at law;
(iii) The Securities have been validly authorized; and, when duly executed by the proper officers of the Company, duly authenticated by the Trustee and delivered as contemplated hereby and by the Indenture (and, in the case of any Contract Securities, as contemplated by the Delayed Delivery Contracts with respect thereto), will be validly issued and outstanding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the Indenture subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting creditors' rights generally and to general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at law and conform in all material respects to the description thereof in the Prospectus;
(iv) The Indenture conforms in all material respects to the description thereof in the Prospectus;
(v) 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 thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the Prospectus, and each amendment or supplement thereto comply as to form in all material respects with the requirements of the Act, the Exchange Act and the Trust Indenture Act and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements or other data of a financial or statistical nature); such counsel has no reason to believe that 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 a material fact required to be stated therein or necessary to make the statements therein not misleading (except as aforesaid); and the statements made in the Prospectus under the heading "Description of Debt Securities" and any similar headings in the Prospectus Supplement, insofar as they purport to summarize provisions of documents specifically referred to therein, fairly present the information called for with respect thereto by the registration statement form;
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) No consent, approval authorization or order of any court or governmental agency, authority or body, to the best knowledge of such counsel, is required for the consummation by the Company of the transactions contemplated herein, in any Delayed Delivery Contract, in the Indenture or in the Agreements of Sale and Purchase, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the securities or blue sky laws of any jurisdiction in connection with the sale of the Securities;
(viii) All outstanding shares of common stock of the Company are owned by a wholly owned subsidiary of American Express free and clear of any liens or encumbrances, and all outstanding shares of common stock of such subsidiary are owned by American Express free and clear of any liens or encumbrances;
(ix) The Agreements of Sale and Purchase to which the Company is a party have been duly authorized, executed and delivered by each party thereto, and constitute valid and legally binding instruments enforceable in accordance with their respective terms subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting creditors' rights generally and to general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at law; and to the best of the knowledge of such counsel, no defaults exist in the performance by the parties thereto of any obligation, condition or agreement contained in the Agreements of Sale and Purchase to which the Company is a party; and
(x) The consummation of the transactions contemplated herein or in the Indenture will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute regulating the business or operations of the Company, any indenture, mortgage, deed of trust, note agreement or other agreement or instrument known to such counsel to which the Company is a party or by which it is bound or to which any of the property of the Company is subject, the Company's charter or by-laws, or any order, rule or regulation regulating the business or operations of the Company known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties, except where any such breach, violation or default would not be material to the Company and its subsidiaries taken as a whole.
(e) You shall have received from your counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, such opinion or opinions dated the Closing Date with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to you a certificate of the Chairman of the Board of Directors, President or any Vice President and of the Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to their knowledge, threatened; and
(iii) the Registration Statement, including any supplements or amendments thereto, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor including any of its Subsidiaries shall have incurred any material liabilities supplements or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement amendments thereto, contains an does not contain any untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and since the effective date of the Registration Statement there has not occurred any event concerning which information is required to be contained in an amended or supplemented Prospectus concerning which such information is not contained therein.
(dg) On each Closing Date you You shall have received on the Closing Date a signed opinionletter from Ernst & Young LLP, dated as of such datethe Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriterseffect set forth in Exhibit II hereto, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement Registration Statement and the transactions contemplated herebyProspectus at the time of the Terms Agreement.
(h) Prior to the Closing Date, and the Company shall have furnished to you such counsel such further information, certificates and documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Sources: Underwriting Agreement (American Express Credit Corp)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its respective covenants and agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective under the Act andeffective, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued issued, and no proceedings for that purpose shall have been instituted before or threatened or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing Date, The Underwriters shall be satisfied that (i) the representations and warranties Registration Statement as of its effective date, all documents incorporated by reference in the Registration Statement as of the Company contained in this Agreement shall be true dates of their filing, and correct with the same effect as if made on and as of such Closing Date each Preliminary Prospectus and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration StatementFinal Prospectus, each preliminary prospectus and the Prospectus and including any amendments or supplements thereto shall in all material respects conform to the requirements thereto, as of the Act their respective filing dates and the Rules and Regulationsdates on which they were first used, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall did not contain any untrue statement of a material fact or and did not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have beentherein, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; (ii) since the filing of the Final Prospectus, no event has occurred that should have been set forth in a supplement or amendment to the Final Prospectus that has not been set forth in an effective supplement or amendment; (iii) since the date as of which information is given in the Final Prospectus, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, and since such dates, except in the ordinary course of business, the Company has not entered into any material transaction not referred to in the Final Prospectus; (iv) the Company does not have any material contingent obligations that are not disclosed in the Registration Statement and the Final Prospectus; (v) there are no pending or, to the Company's knowledge, threatened legal proceedings to which the Company is a party or of which property of the Company is subject that are material and that are not disclosed in the Registration Statement and the Final Prospectus; (vi) there are not any franchises, contracts, leases or other documents that are required to be filed as exhibits to the Registration Statement that have not been filed as required; and (vii) the representations and warranties of the Company herein are true and correct in all material respects as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be.
(c) On or prior to the Closing Date, the legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Final Prospectus (except as to the financial statements contained therein), shall have been approved at or prior to the Closing Date by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters. The Underwriters shall have received from counsel to the Underwriters, such opinion or opinions with respect to the issuance and sale of the Shares, the Registration Statement and the Final Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters.
(d) On each the Closing Date you Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received a signed opinionan opinion addressed to the Underwriters, dated as the Closing Date or, if related to the later sale of Option Stock, such later date, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., counsel to the Company, to the effect set forth in Exhibit A hereto. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials.
(e) The Underwriters shall have received, on each of the date hereof the Closing Date and any later date on which Option Stock is purchased, a letter from PricewaterhouseCoopers, LLP, independent public accountants, dated as of the date hereof, the Closing Date or such late date, as the case may be, in form and substance satisfactory to the Underwriters; containing statements and information to the effect that:
(i) they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations promulgated thereunder;
(ii) in their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations promulgated thereunder;
(iii) on the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(A) reading the minutes of meetings of the stockholders, the board of directors and the audit and compensation committees of the Company and its consolidated subsidiaries since December 31, 2003 as set forth in the minute books through a specified date no more than three (3) business days prior to the date of delivery of such letter;
(B) performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS 100, Interim Financial Information, on the unaudited condensed interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, and reading the unaudited interim financial data for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, to the date of the latest available interim financial data; and
(C) making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention as a result of the foregoing procedures that caused them to believe that:
(1) the unaudited condensed interim financial statements, included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related rules and regulations promulgated thereunder;
(2) any material modifications should be made to the unaudited condensed interim financial statements, included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at a specified date not more than three (3) business days prior to the date of delivery of such letter, there was any change in the capital stock or increase in long-term debt of the Company and its consolidated subsidiaries as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, or (ii) for the period from the date of the latest income statement included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, to the date of the latest available financial data and for the period from the date of the latest income statement included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, to a specified date not more than three (3) business days prior to delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in total revenue, except in all instances for changes, increases or decreases which the Registration Statement, any Preliminary Prospectus or the Final Prospectus, as applicable, discloses have occurred or may occur, or they shall state any specific changes, increases or decreases;
(iii) The letter shall also state that PricewaterhouseCoopers, LLP has carried out certain other specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Final Prospectus, as applicable, and which are specified by the Underwriters and agreed to by PricewaterhouseCoopers, LLP, and has found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and its subsidiaries identified in such letter.
(f) The Company shall deliver to you a copy of a letter from PricewaterhouseCoopers LLP, addressed to the Company, stating that their review of the Company's internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company's consolidated balance sheets, related consolidated statements of operations, stockholders' equity, and cash flows as of December 31, 2003 and 2002, and the results of operations and cash flows for each of the three years in the period ended December 31, 2003, did not disclose any weaknesses in internal controls that they considered to be material weaknesses.
(g) On the Closing Date, and on any later date on which Option Stock is purchased, you shall have received a certificate, dated the Closing Date or such later date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of the Company stating that the respective signers of said certificate have carefully examined the Registration Statement in the form in which it originally became effective and the Final Prospectus and any amendments or supplements thereto and this Agreement, and that the statements included in paragraph (b) of this Section 7 are true and correct.
(h) Prior to the Closing Date, the Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(i) You shall have been furnished evidence in usual written or electronic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to you, of the qualification referred to in paragraph (f) of Section 6 hereof.
(j) The Nasdaq National Market shall have approved the Shares for listing, subject only to official notice of issuance. In case any of the conditions specified in this Section 7 shall not be fulfilled, this Agreement may be terminated by ▇.▇. ▇▇▇▇▇▇▇▇▇ & Markiles LLP+ Co., counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel LLC by giving notice to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each . Any such termination shall be without liability of the other Underwriters.
(f) At Company to the time Underwriters and without liability of the signing Underwriters to the Company; provided, however, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Company under this Agreement, including all costs and expenses referred to in paragraph (g) of Section 6 hereof; and (ii) if this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from is terminated by ▇.▇. ▇▇▇▇▇▇▇▇▇ & + Co., LLC because of any refusal or failure on the part of the Company Certified Public Accountants PCto perform any of its obligations or agreement contained herein, addressed to fulfill any of the Underwriters (conditions herein, or to comply with executed copies for each any provision hereof other than by reason of a default by any of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on Company will reimburse the NASDAQ Global MarketUnderwriters upon demand for all actual, subject to official notice accountable out-of-pocket expenses (including reasonable fees and disbursements of issuance.
(hcounsel) FINRA that shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed been incurred by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date them in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisetransactions contemplated hereby.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by Nelnet Funding under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Nelnet Funding or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of Nelnet Funding, the Company and its subsidiariesSellers, taken as a wholethe Servicer, from that set forth in InTuition or NLS not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Underwriters, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of trusts sponsored by Nelnet Funding, a Seller, the Servicer, InTuition or NLS by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by Nelnet Funding, a Seller, the Servicer, InTuition or NLS (other than an announcement with positive implications of a possible upgrading, and the Prospectusno implication of a possible downgrading, except changes that of such rating), or (iii) any event or development which makes any statement made in the Registration Statement indicates might occur after the effective date of the Registration Statementor Prospectus untrue or which, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course opinion of business other than as referred Nelnet Funding and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as of such date, an opinion addressed to you of ▇▇▇▇▇▇, ▇ ▇▇▇▇ LLP, in its capacity as counsel to Nelnet Funding and the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of Nelnet Funding and the Company, to each of the Purchase Agreements, Servicing Agreement, Indenture and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇ & Markiles ▇▇▇▇ LLP, in its capacity as counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings for Nelnet Funding and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably and substance satisfactory to counsel for the Underwritersyou and your counsel, together with signed or photostatic copies thereof for each of the concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this AgreementSellers to Nelnet Funding, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel from Nelnet Funding to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Student Loan Funding LLC)
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters hereunder under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its covenants and agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective under the Act andeffective, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued issued, and no proceedings for that purpose shall have been instituted before or, or to the knowledge of the Company or the Representatives, Underwriters threatened or shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing Date, The Underwriters shall be satisfied that (i) the representations and warranties as of the Company contained Effective Date, the statements made in this Agreement shall be the Registration Statement and the Prospectus were true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or Statement nor the Prospectus, or any amendment or supplement thereto, shall contain any untrue statement of a material fact or omit Prospectus omitted to state any material a fact required to be stated therein or necessary to make the statements therein not misleading; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment; (iii) there shall have been, since the respective dates as of which information is givengiven in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, no there has not been any material adverse change or any development involving a prospective material adverse change in the condition (financial or otherwise), business, prospects properties, financial condition or results of operations of the Company and its subsidiariesthe Subsidiary, taken as a whole, whether or not arising from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not transactions in the ordinary course of business other than as business, and since such dates, except in the ordinary course of business, neither the Company nor the Subsidiary has entered into any material transaction not referred to or contemplated in the Registration StatementStatement in the form in which it originally became effective and the Prospectus contained therein; and (iv) except as set forth neither the Company nor the Subsidiary has any material contingent obligations that are not disclosed in each preliminary prospectus the Registration Statement and the Prospectus, ; (v) there are no action, suit or proceeding at law or in equity shall be pending or, to the Company’ 's knowledge, threatened against legal proceedings to which the Company or the Subsidiary is a party or of which property of the Company or the Subsidiary is subject that are material and that are not disclosed in the Registration Statement and the Prospectus; (vi) there are not any of its Subsidiaries franchises, contracts, leases or other documents that would be are required to be set forth in filed as exhibits to the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse EffectStatement that have not been filed as required; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of (vii) the representations and warranties of the Company set forth herein are true and correct in Section 1 hereof and confirming that all conditions set forth herein material respects as of the Closing Date or any later date on which Option Stock is to be met by purchased, as the Company have been met as of such datecase may be.
(c) No Underwriter On or prior to the Closing Date, the legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements contained therein), shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, been approved by ▇▇▇▇▇▇▇▇ & Markiles ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters. The Underwriters shall have received from counsel to the several Underwriters, such opinion or opinions with respect to the sufficiency issuance and sale of all corporate proceedings the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents information as they may have reasonably requested for the purpose of enabling request to enable them to pass upon such matters.
(ed) On each the Closing Date you Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the signed opinionUnderwriters, dated as the Closing Date or, if related to the later sale of Option Stock, such later date, of K&L Gates Pillsbury Madison & Sutro LLP, counsel to the Company, substantially to the effect set forth in form reasonably satisfactory Exhibit A --------- hereto. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel for the Underwritersdeems proper, together with signed or photostatic copies thereof for each on certificates of responsible officers of the other UnderwritersCompany and public officials. References to the Registration Statement and the Prospectus in this paragraph (d) shall include any amendment or supplement thereto at the date of such opinion.
(fe) At the time of the signing of this Agreement and on each Closing Date, you You shall have received a signed letter, dated, respectively, as from each of each such date, from KPMG LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Certified Public Accountants PCCompany, LLP, as applicable, a letter or letters, addressed to the Underwriters (and dated the Closing Date and any later date on which Option Stock is purchased, confirming that they are independent public accountants with executed copies for each respect to the Company within the meaning of the UnderwritersAct and the applicable published rules and regulations thereunder and based upon the procedures described in their letter delivered to the Underwriters concurrently with the execution of this Agreement (the "Original Letter"), but carried out to a date not more than three (3) business days prior to the Closing Date or such later date on which Option Stock is purchased (i) confirming, to the extent true, that the statements and conclusions set forth in the form heretofore approved Original Letter are accurate as of the Closing Date or such later date, as the case may be; and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter that are necessary to reflect any changes in the facts described in the Original Letter since the date of the Original Letter or to reflect the availability of more recent financial statements, data or information. The letters shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company or the Subsidiary, which in your sole judgment, makes it impractical or inadvisable to proceed with the public offering of the Shares or the purchase of the Option Stock as contemplated by counsel for the UnderwritersProspectus.
(f) You shall have received from KPMG LLP a letter stating that their review of the Company's internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company's financial statements as of December 31, 1999, did not disclose any weakness in internal controls that they considered to be material weaknesses.
(g) As On the Closing Date, and on any later date on which Option Stock is purchased, you shall have received a certificate, dated the Closing Date or such later date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of the effective date Company stating that the respective signers of said certificate have carefully examined the Registration StatementStatement in the form in which it originally became effective and the Prospectus contained therein and any amendments or supplements thereto and this Agreement, and that the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice statements included in paragraph (b) of issuancethis Section 7 are true and correct.
(h) FINRA You shall have confirmed that it has not raised any objection with respect to been furnished evidence in usual written or telegraphic form from the fairness and reasonableness appropriate authorities of the underwriting terms and arrangements for this offeringseveral jurisdictions, or other evidence satisfactory to you, of the qualification referred to in paragraph (f) of Section 6 hereof.
(i) At Prior to the date Closing Date, the Shares shall have been duly authorized for inclusion on the Nasdaq National Market upon official notice of issuance. In case any of the conditions specified in this Section 7 shall not be fulfilled, this Agreement may be terminated by you by giving written notice to the Company. Any such termination shall be without liability of the Company to the Underwriters and without liability of the Underwriters to the Company; provided, however, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Company under this Agreement, including all costs and expenses referred to in paragraphs (g) and (h) of Section 6 hereof; and (ii) if this Agreement is terminated by you because of any refusal, inability or failure on the Representatives part of the Company to perform any agreement herein, to fulfill any of the conditions herein, or to comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out- of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have received an agreement substantially in the form of Annex A hereto signed been incurred by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date them in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisetransactions contemplated hereby.
Appears in 1 contract
Sources: Underwriting Agreement (Aristotle International Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before instituted, threatened or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, which in the opinion of the Representative, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth or (iii) any event or development which makes any statement made in the Registration Statement, each preliminary prospectus and Disclosure Package or Prospectus untrue or which, in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth change in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company Disclosure Package or any of its Subsidiaries before or by any commission, board or administrative agency Prospectus in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, Disclosure Package or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, or other counsel satisfactory to you, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Eligible Lender Trust Agreements, the Indenture, the Trust Agreement, and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning “true sale,” “non-consolidation” and “first perfected security interest” and certain other issues with respect to the transfer of the Trust Student Loans from the SLC to SLC Receivables, SLC Receivables to the Company and from the Company to the Indenture Trustee.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated as of the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Initial FWP and the Prospectus under the headings “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA Considerations”, to the extent such datestatements summarize the material tax consequences and the material consequences under ERISA, respectively, of the purchase, beneficial ownership and disposition of the Notes to holders thereof described therein, are correct in all material respects.
(e) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as Underwriters’ Counsel, dated the Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion and disclosure letters addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Registration Statement, the Disclosure Package and the Prospectus certain matters arising under the Trust Indenture Act and the ▇▇▇▇ ▇▇▇.
(h) You shall have received opinions addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or other counsel satisfactory to you in their capacity as counsel to SLC and SLC Receivables, each dated the Closing Date and satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPFinger, P.A., in its capacity as counsel to the several UnderwritersOwner Trustee, with respect dated the Closing Date and in form and substance satisfactory to the sufficiency of all corporate proceedings you and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersyour counsel.
(ej) On each Closing Date you You shall have received the signed opinion, dated as an opinion addressed to you of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇▇▇▇▇ LLP, addressed in its capacity as counsel to the Underwriters (with executed copies for each of Indenture Trustee, dated the Underwriters) Closing Date and in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statementand substance satisfactory to you and your counsel, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.effect that:
(i) At The Indenture Trustee is a national banking association duly organized and validly existing under the date laws of this the United States.
(ii) The Indenture Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture and the Custody Agreement.
(iii) The execution and delivery of each of the Indenture and the Custody Agreement, and the Representatives performance by the Indenture Trustee of its obligations under the Indenture and the Custody Agreement, have been duly authorized by all necessary action of the Indenture Trustee and each has been duly executed and delivered by the Indenture Trustee.
(iv) The Indenture and the Custody Agreement constitute valid and binding obligations of the Indenture Trustee enforceable against the Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the Indenture and the Custody Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Neither the consummation by the Indenture Trustee of the transactions contemplated in the Indenture and the Custody Agreement nor the fulfillment of the terms thereof by the Indenture Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Indenture Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Indenture Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Indenture Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Indenture Trustee or any of its subsidiaries.
(vii) The Eligible Lender Trustee is an “eligible lender” for purposes of the FFELP Program in its capacity as Indenture Trustee with respect to Trust Student Loans held under the Indenture.
(k) You shall have received an agreement substantially opinion addressed to you of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Eligible Lender Trustee and the Indenture Administrator, in form and substance satisfactory to you.
(l) [Reserved]
(m) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of SLC, SLC Receivables and the Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of SLC, SLC Receivables or the Servicer, as the case may be, contained in the respective SLC Sale Agreement, SLC Receivables Sale Agreement, the Servicing Agreement, the Subservicing Agreement and the Administration Agreement, as applicable, are true and correct in all material respects, that each of SLC, SLC Receivables and the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding SLC, SLC Receivables or the Servicer, as applicable, is fair and accurate in all material respects, and (iii) since the first Time of Sale, no Material Adverse Effect or any development involving a prospective Material Adverse Effect, in or affecting particularly the business or properties of SLC, SLC Receivables or the Servicer, as applicable, has occurred.
(n) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of the Sub-Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Sub-Servicer contained in the Subservicing Agreement are true and correct in all material respects, that the Sub-Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding the Sub-Servicer is fair and accurate in all material respects, and (iii) since the date of the Time of Sale, except as may be disclosed in the Prospectus or the Disclosure Package, no Material Adverse Effect or any development involving a prospective Material Adverse Effect in, or affecting particularly the business or properties of the Sub-Servicer has occurred.
(o) You shall have received evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Trust Student Loans and the proceeds thereof to the Indenture Trustee.
(p) [Reserved]
(q) The Underwriters shall have received on the Closing Date from KPMG LLP, accountants to the Company, a letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to (i) certain information regarding the Trust Student Loans and (ii) the static pool data and setting forth the results of Annex A hereto such specified procedures.
(r) All the representations and warranties of the Company contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriters shall have received a certificate, dated the Closing Date and signed by an executive officer of the persons listed on Schedule B hereto, Company to the effect set forth in this Section 8(r) and such in Section 8(s) hereof.
(s) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements shall herein contained and required to be in full force and effect on performed or complied with by it hereunder at or prior to the Closing Date.
(jt) All proceedings taken at The Underwriters shall have received by instrument dated the Closing Date, in lieu of or prior in addition to each the legal opinions referred to in this Section 8, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents.
(u) You shall have received certificates addressed to you dated the Closing Date of New York State Higher Education Services Corporation, American Student Assistance, Texas Guaranteed Student Loan Corporation and California Student Aid Commission (each, a “Significant Guarantor”) to the effect that (i) the information in the Prospectus and the Disclosure Package with respect to the applicable Significant Guarantor does not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements about the Significant Guarantor therein, in the light of the circumstances under which they are made, not misleading, and (ii) there are no proceedings pending or overtly threatened in writing against the Significant Guarantor in any court or before any governmental authority or arbitration board or tribunal, wherein an unfavorable decision, ruling or finding is likely and would materially adversely affect the performance by the Significant Guarantor to carry on its business substantially as now conducted.
(v) The Notes shall be rated “AAA” by Fitch, Inc. (“Fitch”), “AAA” by Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service (“Moody’s); and neither Fitch, S&P nor Moody’s has placed the Notes under surveillance or review with possible negative implications.
(w) You shall have received evidence satisfactory to you of the completion of all actions necessary to effect the transfer of the Trust Student Loans as described in the Prospectus and the Disclosure Package and the recordation thereof on SLC’s, SLC Receivables’ and the Sub-Servicer’s computer systems.
(x) You shall have received such further information, certificates and documents as the Representative may reasonably have requested, and all proceedings in connection with the sale of the Shares transactions contemplated by this Agreement and all documents incidental hereto shall be in all material respects reasonably satisfactory in form and substance to you the Representative and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel its counsel.
(y) You shall have received each such other opinions, certificates and every additional document, letter, opinion, certificate documents as are required under the Indenture as a condition to the issuance of the Notes. The Company will provide or other item dated and executed in a manner reasonably satisfactory cause to be provided to you such conformed copies of such of the foregoing opinions, notes, letters and such counsel, documents as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2009-3)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter hereunder are subject to the accuracy, when made and on the Delivery Date, of the respective representations and warranties of each of the Company and the Selling Stockholder contained herein, to the performance by each of the Company and the Selling Stockholder of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statement Prospectus shall have become effective under been timely filed with the Act and, at Commission in accordance with Section 6(a)(i) of this Agreement; the Closing Date, Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the qualifications use of the Shares Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding or examination for that such purpose shall have been instituted before or, to initiated or threatened by the knowledge Commission; and any request of the Company Commission for inclusion of additional information in the Registration Statement or the Representatives, Prospectus or otherwise shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityhave been complied with.
(b) At each Closing Date, (i) the representations The Underwriter shall not have discovered and warranties of disclosed to the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) Delivery Date that the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the ProspectusPricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of the Underwriter, is material or omits to state a fact which, in the opinion of the Underwriter, 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 Stock, the Registration Statement, the Prospectus and 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, and the Company and the Selling Stockholder, as the case may be, shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Proskauer Rose LLP shall have furnished to the Underwriter its written opinion, as counsel to the Company, addressed to the Underwriter and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-1.
(e) The General Counsel of the Company shall have furnished to the Underwriter its written opinion, addressed to the Underwriter and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-2.
(f) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished to the Underwriter its written opinion, as counsel to the Selling Stockholder, addressed to the Underwriter and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-3.
(g) The Underwriter shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions and negative assurance statements, dated the Delivery Date, with respect to the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Underwriter shall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Underwriter, addressed to the Underwriter and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Exchange Act, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Base 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.
(i) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Underwriter concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Underwriter a letter (the “bring-down letter”) of such accountants, addressed to the Underwriter and dated the Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Exchange Act, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial 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 Underwriter a certificate, dated the Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that:
(i) the representations, warranties and agreements of the Company in Section 1 of this Agreement are true and correct on and as of the Delivery Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and
(iii) each of them has carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact or and did not and do not omit to state any a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Prospectus and the Pricing Disclosure Package, in the light of the circumstances under which they were made) not misleading; , and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(k) The Selling Stockholder shall have furnished to the Underwriter on the Delivery Date a certificate, dated the Delivery Date, signed by, or on behalf of, the Selling Stockholder stating that the representations and warranties of the Selling Stockholder in Section 2 of this Agreement are true and correct on and as of the Delivery Date, and the Selling Stockholder has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Date.
(l) Except as disclosed in the Pricing Disclosure Package as of the Applicable Time, (i) Neither the Company nor any of the Subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Base Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of the Subsidiaries or any change in or affecting the business, properties, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Underwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Stock being delivered on the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(m) The Company has no debt securities or preferred stock that is rated by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations).
(n) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) there shall have been, since been an escalation in hostilities involving the respective dates as United States or there shall have been a declaration of which information is given, no a national emergency or war by the United States or (iv) such a material adverse change in the condition (general economic, political or financial or otherwise)conditions, businessincluding, prospects or results of operations of the Company and its subsidiarieswithout limitation, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur result of terrorist activities after the effective date hereof (or the effect of international conditions on the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency financial markets in the United States or elsewhereshall be such), wherein an unfavorable decisionas to make it, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate judgment of the principal executive officer and Underwriter, impracticable or inadvisable to proceed with the principal financial public offering or accounting officer delivery of the Company, dated as of such Closing Date, evidencing compliance with Stock being delivered on the provisions of this Subsection 5(b), Delivery Date on the terms and confirming in the accuracy of manner contemplated in the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such dateProspectus.
(co) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that The Lock-Up Agreements described in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(dSection 1(aa) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed delivered to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed Underwriter on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At or before the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements Agreement shall be in full force and effect on the Closing Delivery Date.
(j) . All proceedings taken at opinions, letters, evidence and certificates mentioned above or prior elsewhere in this Agreement shall be deemed to each Closing Date be in connection compliance with the sale of the Shares shall be reasonably satisfactory provisions hereof only if they are in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseUnderwriter.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, which in the opinion of the Representative, would materially adversely affect the market for the Notes , (ii) any downgrading in the rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth or (iii) any event or development which makes any statement made in the Registration Statement, each preliminary prospectus and Disclosure Package or Prospectus untrue or which, in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth change in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company Disclosure Package or any of its Subsidiaries before or by any commission, board or administrative agency Prospectus in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, Disclosure Package or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes .
(c) You shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, or other counsel satisfactory to you, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Company Eligible Lender Trust Agreement, the Indenture, the Trust Agreement, and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning “true sale,” “non- consolidation” and “first perfected security interest” and certain other issues with respect to the transfer of the Trust Student Loans from the SLC to SLC Receivables, SLC Receivables to the Company and from the Company to the Indenture Trustee.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated as of the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Initial FWP and the Prospectus under the headings “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA Considerations”, to the extent such datestatements summarize the material tax consequences and the material consequences under ERISA, respectively, of the purchase, beneficial ownership and disposition of the Notes to holders thereof described therein, are correct in all material respects.
(e) You shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as Underwriters’ Counsel, dated the Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion and disclosure letters addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Registration Statement, the Disclosure Package and the Prospectus certain matters arising under the Trust Indenture Act and the ▇▇▇▇ ▇▇▇.
(h) You shall have received opinions addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP or other counsel satisfactory to you in their capacity as counsel to SLC and SLC Receivables, each dated the Closing Date and satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPFinger, P.A., in its capacity as counsel to the several UnderwritersOwner Trustee, with respect dated the Closing Date and in form and substance satisfactory to the sufficiency of all corporate proceedings you and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersyour counsel.
(ej) On each Closing Date you You shall have received the signed opinionan opinion addressed to you of Thacher, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇ LLP, addressed in its capacity as counsel to the Underwriters (with executed copies for each of Indenture Trustee, dated the Underwriters) Closing Date and in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statementand substance satisfactory to you and your counsel, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.effect that:
(i) At The Indenture Trustee is a national banking association duly organized and validly existing under the date laws of this the United States.
(ii) The Indenture Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture and each Guarantee Agreement.
(iii) The execution and delivery of each of the Indenture and each Guarantee Agreement, and the Representatives performance by the Indenture Trustee of its obligations under the Indenture and each Guarantee Agreement, have been duly authorized by all necessary action of the Indenture Trustee and each has been duly executed and delivered by the Indenture Trustee.
(iv) The Indenture and each Guarantee Agreement constitute valid and binding obligations of the Indenture Trustee enforceable against the Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the Indenture and each Guarantee Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by the Indenture Trustee.
(vii) Neither the consummation by the Indenture Trustee of the transactions contemplated in the Indenture and each Guarantee Agreement nor the fulfillment of the terms thereof by the Indenture Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Indenture Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Indenture Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Indenture Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Indenture Trustee or any of its subsidiaries.
(viii) The Eligible Lender Trustee is an “eligible lender” for purposes of the FFELP Program in its capacity as Indenture Trustee with respect to Trust Student Loans held under the Indenture.
(k) You shall have received an agreement substantially opinion addressed to you of Thacher, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as counsel for the Eligible Lender Trustee and the Indenture Administrator, in form and substance satisfactory to you.
(l) [Intentionally Omitted]
(m) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of the Sub-Administrator in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Sub-Administrator contained in the Subadministration Agreement are true and correct in all material respects, that the Sub-Administrator has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding the Sub-Administrator is fair and accurate in all material respects, and (iii) since the date of the Time of Sale, except as may be disclosed in the Prospectus or the Disclosure Package, no Material Adverse Effect or any development involving a prospective Material Adverse Effect in, or affecting particularly the business or properties of the Sub-Administrator has occurred.
(n) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of SLC, SLC Receivables and the Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of SLC, SLC Receivables or the Servicer, as the case may be, contained in the respective SLC Sale Agreement, SLC Receivables Sale Agreement, the Servicing Agreement, the Subservicing Agreement, the Administration Agreement and the Subadministration Agreement, as applicable, are true and correct in all material respects, that each of SLC, SLC Receivables and the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding SLC, SLC Receivables or the Servicer, as applicable, is fair and accurate in all material respects, and (iii) since the first Time of Sale, no Material Adverse Effect or any development involving a prospective Material Adverse Effect, in or affecting particularly the business or properties of SLC, SLC Receivables or the Servicer, as applicable, has occurred.
(o) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of the Sub-Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Sub-Servicer contained in the Subservicing Agreement are true and correct in all material respects, that the Sub-Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding the Sub-Servicer is fair and accurate in all material respects, and (iii) since the date of the Time of Sale, except as may be disclosed in the Prospectus or the Disclosure Package, no Material Adverse Effect or any development involving a prospective Material Adverse Effect in, or affecting particularly the business or properties of the Sub-Servicer has occurred.
(p) You shall have received evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Trust Student Loans and the proceeds thereof to the Indenture Trustee.
(q) You shall have received a certificate addressed to you dated the Closing Date from a responsible officer acceptable to you of the Indenture Trustee in form and substance satisfactory to you and your counsel and to which shall be attached each Guarantee Agreement.
(r) The Underwriters shall have received on the Closing Date from KPMG LLP, accountants to the Company, a letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to (i) certain information regarding the Trust Student Loans and (ii) the static pool data and setting forth the results of Annex A hereto such specified procedures.
(s) All the representations and warranties of the Company contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriters shall have received a certificate, dated the Closing Date and signed by an executive officer of the persons listed on Schedule B hereto, Company to the effect set forth in this Section 8(s) and such in Section 8(t) hereof.
(t) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements shall herein contained and required to be in full force and effect on performed or complied with by it hereunder at or prior to the Closing Date.
(ju) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel The Underwriters shall have received each by instrument dated the Closing Date (at the option of the Representative), in lieu of or in addition to the legal opinions referred to in this Section 8, the right to rely on opinions provided by such counsel and every additional documentall other counsel under the terms of the Basic Documents.
(v) You shall have received certificates addressed to you dated the Closing Date of New York State Higher Education Services Corporation, letterCalifornia Student Aid Commission, opinionTexas Guaranteed Student Loan Corporation and United Student Aid Funds, certificate Inc. (each, a “Significant Guarantor”) to the effect that (i) the information in the Prospectus and the Disclosure Package with respect to the applicable Significant Guarantor does not contain any untrue statement of material fact or other item dated omit to state a material fact required to be stated therein or necessary to make the statements about the Significant Guarantor therein, in the light of the circumstances under which they are made, not misleading, and executed (ii) there are no proceedings pending or overtly threatened in writing against the Significant Guarantor in any court or before any governmental authority or arbitration board or tribunal, wherein an unfavorable decision, ruling or finding is likely and would materially adversely affect the performance by the Significant Guarantor to carry on its business substantially as now conducted.
(w) The Class A Notes shall be rated “AAA,” “AAA” and “Aaa,” respectively, by Fitch, Inc. (“Fitch”), Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and ▇▇▇▇▇’▇ Investors Service (“Moody’s”), the Class B Notes shall be rated “AA+,” “AA+” and “Aa1,” respectively, by Fitch, S&P and ▇▇▇▇▇’▇, the Class C Notes shall be rated “A+,” “A+” and “A1,” respectively, by Fitch, S&P and Moody’s; and none of Fitch, S&P or Moody’s have placed the Notes under surveillance or review with possible negative implications.
(x) The issuance of the Notes shall not have resulted in a manner reasonably reduction or withdrawal by Fitch, S&P or Moody’s of their then current rating of any outstanding securities issued by the Company.
(y) You shall have received evidence satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at completion of all actions necessary to effect the Closing Date. If any transfer of the conditions herein provided for Trust Student Loans as described in this Section the Prospectus and the Disclosure Package and the recordation thereof on SLC’s, SLC Receivables’ and the Sub-Servicer’s computer systems.
(z) You shall not have been fulfilled received such further information, certificates and documents as of the date indicated, all obligations of the several Underwriters under this Agreement Representative may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.re
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2007-1)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by Nelnet Funding under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Nelnet Funding or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of Nelnet Funding, the Company and its subsidiariesServicer, taken as a whole, from that set forth in the Seller or NLS not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Representatives, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of trusts sponsored by Nelnet Funding, the Servicer, the Seller or NLS by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by Nelnet Funding, the Servicer, the Seller or NLS (other than an announcement with positive implications of a possible upgrading, and the Prospectusno implication of a possible downgrading, except changes that of such rating), or (iii) any event or development which makes any statement made in the Registration Statement indicates might occur after the effective date of the Registration Statementor Prospectus untrue or which, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course opinion of business other than as referred Nelnet Funding and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel to the Company, d▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Date, in form and substance satisfactory to you and your counsel with respect to the Nelnet Trust Purchase Agreement, the Servicing Agreement, the Indenture, the Company Eligible Lender Agreement and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel for the Company, ▇▇ ▇▇▇▇ ▇▇d substance satisfactory to you and your counsel, concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the transfer of the Financed Eligible Loans from the Seller to Nelnet Funding, from Nelnet Funding to the Company and from the Company to the Trustee. You also shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel to NELNET-2, date▇ ▇▇▇ ▇▇▇▇ing Date, in form and substance satisfactory to you and your counsel, stating that the extraordinary optional redemption by NELNET-2 of certain series of its student loan auction rate notes with the proceeds received by NELNET-2 from the sale of the Financed Eligible Loans to Nelnet Funding (the "Redemption") is authorized and permitted pursuant to the terms of the indenture and indenture supplements under which such notes were issued.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Kutak Rock LLP, dated in its capacity as of such date, of counsel for Nelnet Fundin▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, dated the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Prospectus under the headings "Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and are correct in all material respects.
(e) You shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel for Nelnet Fundin▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ & Markiles LLP, dated the Closing Date, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each character of the other UnderwritersNotes for federal tax purposes.
(f) At the time of the signing of this Agreement and on each Closing Date, you You shall have received a signed letteran opinion addressed to you of Stroock & Stroock & Lavan LLP, datedin its capacity as Underwriters' Counsel, respectivelydated t▇▇ ▇▇osing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion addressed to you of Ballard Spahr Andrews & Ingersoll LLP, in its capacity as counsel fo▇ ▇▇▇▇▇▇ ▇▇▇▇ing ▇▇▇ ▇▇▇ Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Prospectus and the Registration Statement and certain matters arising under the Trust Indenture Act of 1939, as amended, and the Investment Company Act of each such date1940, from as amended. You also shall have received an opinion addressed to you of Ballard Spahr Andrews & Ingersoll LLP, in its capacity as co▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇-▇▇ & Company Certified Public Accountants PC, addressed ▇ated the Closing Date, in form and substance satisfactory to you and your counsel, stating that the Underwriters Redemption (as defined in Section 6(c) above) by NELNET-2 is consistent with executed copies the disclosure concerning extraordinary optional redemption contained in the prospectus supplement and prospectus for each series of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuancenotes being redeemed.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives You shall have received an agreement substantially opinions addressed to you of Perry, Guthery, Haase & Gessford, P.C. in their capacity as counsel to Nelnet, ▇▇ se▇▇▇▇▇▇ ▇nd administrator, NLS, Nelnet Funding and the form of Annex A hereto signed by the persons listed on Schedule B heretoSeller, and such agreements shall be in full force and effect on each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of Nelnet, NLS and the Seller is a corporation, and Nelnet Funding is a limited liability company, in good standing under the laws of their respective states of incorporation or organization; each having the full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under each of the Basic Documents to which it is a party.
(ii) The NELNET-2 Purchase Agreement has been duly authorized, executed and delivered by the Seller, the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Agreement and this Agreement have been duly authorized, executed and delivered by Nelnet Funding, the Administration Agreement, the Servicing Agreement and the Subservicing Agreement have been duly authorized, executed and delivered by Nelnet and the Subservicing Agreement and the Custodian Agreement have been duly authorized, executed and delivered by NLS and each such agreement is the legal, valid and binding obligations of the Seller, Nelnet Funding, Nelnet and NLS, as the case may be, enforceable against the Seller, Nelnet Funding, Nelnet and NLS, as the case may be, in accordance with their respective terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(iii) Neither the execution and delivery by Nelnet of the Administration Agreement, the Servicing Agreement or the Subservicing Agreement, or the execution and delivery by Nelnet Funding of the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Agreement or this Agreement, or the execution by the Seller of the NELNET-2 Purchase Agreement, or the execution and delivery by NLS of the Subservicing Agreement or the Custodian Agreement, nor the consummation by Nelnet, Nelnet Funding, the Seller or NLS of the transactions contemplated therein nor the fulfillment of the terms thereof by Nelnet, Nelnet Funding, the Seller or NLS will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the by-laws or limited liability company agreement, as the case may be, of Nelnet, Nelnet Funding, the Seller or NLS or of any indenture or other agreement or instrument to which Nelnet, Nelnet Funding, the Seller or NLS is a party or by which Nelnet, Nelnet Funding, the Seller or NLS is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Nelnet, Nelnet Funding, the Seller or NLS of any court, regulatory body, administrative agency or governmental body having jurisdiction over Nelnet, Nelnet Funding, the Seller or NLS.
(iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry and reasonable investigation, threatened against Nelnet, Nelnet Funding, the Seller or NLS before or by any governmental authority that might materially and adversely affect the performance by Nelnet, Nelnet Funding, the Seller or NLS of its obligations under, or the validity or enforceability of, any Basic Documents to which it is a party.
(v) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of Nelnet contained in the Administration Agreement, the Servicing Agreement, or the Subservicing Agreement, or the representations and warranties of Nelnet Funding in the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Trust Agreement or this Agreement or the representations and warranties of the Seller contained in the NELNET-2 Purchase Agreement or the representations and warranties of NLS contained in the Subservicing Agreement or the Custodian Agreement are other than as stated therein.
(vi) No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required (a) for the due execution, delivery and performance by Nelnet of the Administration Agreement, the Servicing Agreement or the Subservicing Agreement, (b) for the due execution, delivery and performance by Nelnet Funding of the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Trust Agreement or this Agreement, (c) for the due execution, delivery and performance by the Seller of the NELNET-2 Purchase Agreement, (d) for the due execution, delivery and performance by NLS of the Subservicing Agreement or the Custodian Agreement or (e) for the perfection of the Company's and the Trustee's interest in the Student Loans sold pursuant to the Purchase Agreements or the exercise by the Company (or its permitted assigns) and the Trustee of their rights and remedies under the Purchase Agreements, including specifically the filings of any Uniform Commercial Code financing statements, except for the execution and delivery of the Guarantee Agreements. ------
(vii) The Nelnet Trust Purchase Agreement together with the related bill of sale and blanket endorsement effects a valid ▇▇▇e to the Trustee of the Student Loans to be sold under the Nelnet Trust Purchase Agreement enforceable against creditors of, and purchasers from, the Seller.
(viii) As of the date specified in a schedule to such opinion, there were no (a) UCC financing statements naming the Seller as debtor or seller and covering any Student Loans to be sold under the Purchase Agreements or interest therein or (b) notices of the filing of any federal tax lien (filed pursuant to Section 6323 of the Internal Revenue Code) or lien of the Pension Benefit Guaranty Corporation (filed pursuant to Section 4068 of ERISA) covering any Student Loan to be sold under the Purchase Agreements or interest therein, listed in the available records in the respective offices set forth in such schedule opposite each such date (which are all of the offices that are prescribed under either the internal law of the conflict of law rules of the Nebraska UCC as the offices in which filings should be made to perfect security interests in Student Loans), except as set forth in such schedule.
(ix) As of the date of such opinion, by executing the Guarantee Agreements and upon execution and delivery of the instruments of transfer described in the Purchase Agreements and notification of the Guarantors and borrowers of the transfer contemplated thereby, and assuming that the Trustee is an eligible lender as that term is defined in 20 16 U.S.C.ss.1085(d)(1) of the Higher Education Act of 1965, as amended, the Trustee on behalf of the Company will be entitled to the benefit of the applicable Guarantor and/or Department of Education payments under the Act related to the Student Loans sold under the Purchase Agreements, subject to the terms and conditions of the Guarantee Agreements and the Act.
(i) You shall have received opinions addressed to you of Richards, Layton & Finger, in their capacity as counsel to the several UnderwritersDelaw▇▇▇ ▇▇▇▇tee, and at as Delaware counsel to the time of signing this Agreement Company and on Nelnet Funding, dated the Closing Date, you Date and such counsel shall have received each in form and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably substance satisfactory to you and such your counsel.
(j) You shall have received an opinion addressed to you of counsel to the Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel, as you or such counsel may reasonably request in connection with each preliminary prospectusto the effect that:
(i) The Trustee is a national banking association duly organized and validly existing under the laws of the United States of America.
(ii) The Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture, the ProspectusCustodian Agreement, the Registration StatementEligible Lender Agreements, the offer Administration Agreement and sale each Guarantee Agreement.
(iii) The execution and delivery of each of the Shares hereunderIndenture, or proceedings at the Closing Date. If any Custodian Agreement, the Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement, and the performance by the Trustee of its obligations under the Indenture, the Custodian Agreement and each Guarantee Agreement, have been duly authorized by all necessary action of the conditions herein provided for in this Section shall not have Trustee and each has been fulfilled as of duly executed and delivered by the date indicatedTrustee.
(iv) The Indenture, all the Custodian Agreement, the Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement constitute valid and binding obligations of the several Underwriters under this Agreement may be cancelled Trustee enforceable against the Trustee.
(v) The execution and delivery by the Representatives Trustee of the Indenture, the Custodian Agreement, the Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by notifying the Company Trustee.
(vii) Neither the consummation by the Trustee of the transactions contemplated in the Indenture, the Custodian Agreement, the Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement nor the fulfillment of the terms thereof by the Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Trustee or any of its subsidiaries.
(viii) There are no actions, suits or proceedings pending or, to the best of such cancellation on counsel's knowledge after due inquiry, threatened against the Trustee (as indenture trustee under the Indenture or prior to in its individual capacity) before or by any governmental authority that might materially and adversely affect the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.perfo
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Inc)
Conditions of the Underwriters’ Obligations. The obligations of ------------------------------------------- the several obligations Underwriters to purchase and pay for the Notes, as provided herein, shall be subject to (i) the accuracy, in all material respects, of the representations and warranties of the Company herein contained, as of the date hereof, as of the Closing Date and, with respect to Option Notes, the Option Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished pursuant to this Section 5 to you or to counsel of the Underwriters of any qualification or limitation not previously approved in writing by you, (iii) the performance by the Company of its obligations hereunder are subject to and (iv) the following conditionsadditional obligations:
(a) The Any post-effective amendments to the Registration Statement required to be filed by the Company prior to the Closing Date shall have become effective under the Act and, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any such post-effective amendment shall have been issued and no proceedings for that purpose therefor shall have been instituted before initiated or, to the knowledge of the Company or the RepresentativesCompany, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each On the Closing Date (and, with respect to the Option Notes, the Option Closing Date, ) (i) no proceeding under the representations Act or the Exchange Act shall have been initiated or threatened by the Commission, or, with respect to the filing of any Form 8-A under the Exchange Act, by any national securities exchange; and warranties all requests for additional information on the part of the Commission shall have been complied with or such requests shall have been otherwise satisfied, and (ii) since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, except as otherwise stated therein or contemplated thereby, there shall not have been any material adverse change in, or any adverse development which materially affects, the financial condition, results of operations, business or properties of the Company contained and its subsidiaries considered as one enterprise, the effect of which is in this Agreement shall be true your reasonable judgment so material and correct adverse as to make it impracticable or inadvisable to proceed with the same effect as if made public offering or delivery of the Notes on the terms and as of such in the manner contemplated in the Final Prospectus.
(c) The Indenture shall have been duly executed and delivered by the Company and the Trustee.
(d) On the Closing Date and the Company shall have performed all of the obligations and complied (and, with all of the conditions hereunder on its part to be performed or complied with on or prior respect to the Option Notes, the Option Closing Date; (ii) ), the Registration Statement, each preliminary prospectus and the Final Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have beentherein, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations light of the Company and its subsidiariescircumstances under which they were made, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(de) On each the Closing Date you (and, with respect to the Option Notes, the Option Closing Date), the Underwriters shall have received a signed the favorable opinion, dated as of such datethe Closing Time, of ▇▇▇▇▇▇of:
(A) Weil, ▇▇Gotshal & ▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in a form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof to the effect that:
(1) The Notes have been duly authorized by the Company for each issuance and when executed (and assuming the due authorization, execution and delivery of the other Underwriters.
(f) At Indenture by the time Trustee and the execution, delivery and authentication of the signing of this Agreement Notes by the Trustee in accordance with the Indenture) and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & delivered by the Company Certified Public Accountants PC, addressed to and paid for by the Underwriters (in accordance with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, will be duly executed, authenticated, issued and delivered and will constitute the Representatives shall have received an agreement substantially legal, valid and binding obligations of the Company enforceable against the Company in the form accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of Annex A hereto signed by the persons listed on Schedule B heretoequity, including principles of commercial reasonableness, good faith and such agreements shall be fair dealing (regardless of whether a proceeding is sought in full force and effect on the Closing Dateequity or at law).
(j2) All proceedings taken The Indenture has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether a proceeding is sought in equity or at or prior to each Closing Date law).
(3) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company.
(4) The statements made in connection with the Final Prospectus under the caption "Description of the Debt Securities," insofar as they describe the provisions of the Notes and the Indenture, constitute fair summaries thereof accurate in all material respects.
(5) The Company is not now, nor immediately after the sale of the Shares Notes to be sold hereunder and application of the net proceeds from such sale (as described in the Final Prospectus under the caption "Use of Proceeds") will be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(6) Neither the consummation of the transactions contemplated hereby nor the sale, issuance, execution or delivery of the Notes, nor the application of the proceeds therefrom (as shall be reasonably satisfactory described in form and substance to you and counsel to the several UnderwritersFinal Prospectus under the caption "Use of Proceeds"), will violate Regulation T (12 C.F.R. Part 220), U (12 C.F.R. Part 221) or X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System; the Notes, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale use of the Shares hereunderproceeds therefrom (as shall be described in the Final Prospectus under the caption "Use of Proceeds"), or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall do not have been fulfilled constitute "purpose credit" as of the date indicated, all obligations of the several Underwriters such term is understood under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Regulations; and
Appears in 1 contract
Sources: Debt Securities Purchase Agreement (Hughes Electronics Corp)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Sponsor under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Sponsor or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesSponsor, taken as a wholethe Servicer, from that set forth in College Loan Corporation or the Subservicer not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Representatives, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of trusts sponsored by the Sponsor, the Servicer, College Loan Corporation or the Subservicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by the Sponsor, the Servicer, College Loan Corporation or the Subservicer (other than an announcement with positive implications of a possible upgrading, and the Prospectusno implication of a possible downgrading, except changes that of such rating), or (iii) any event or development which makes any statement made in the Registration Statement indicates might occur after or Prospectus untrue or which, in the effective date opinion of the Registration StatementSponsor and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP ("SSL"), in its capacity as counsel to the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the Basic Documents to which the Sponsor is a party and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of SSL, in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the transfer of the Financed Eligible Loans from College Loan Corporation to the Sponsor, from the Sponsor to the Company and from the Company to the Trustee.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of SSL, in its capacity as counsel for the Sponsor and the Company, dated as of such datethe Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, in form and substance satisfactory to you and your counsel to the several Underwriterseffect that the statements in the Prospectus under the headings "Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute statements of matters of law or legal conclusions with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated herebythereto, and the Company shall have furnished to been prepared or reviewed by such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersand are correct in all material respects.
(e) On each Closing Date you You shall have received an opinion addressed to you of SSL, in its capacity as counsel for the signed opinion, dated as of such date, of K&L Gates LLP, counsel to Sponsor and the Company, dated the Closing Date, in form reasonably and substance satisfactory to you and your counsel for with respect to the Underwriters, together with signed or photostatic copies thereof for each character of the other UnderwritersNotes for federal tax purposes.
(f) At You shall have received an opinion addressed to you of ______________, in its capacity as Underwriters' Counsel, dated the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed in form and substance satisfactory to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwritersyou.
(g) As You shall have received an opinion addressed to you of SSL, in its capacity as counsel for the effective date of Sponsor and the Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Prospectus and the Registration StatementStatement and certain matters arising under the Trust Indenture Act of 1939, as amended, and the Common Stock shall be listed on the NASDAQ Global MarketInvestment Company Act of 1940, subject to official notice of issuanceas amended.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives You shall have received an agreement substantially in opinions addressed to you of SSL as counsel to the form of Annex A hereto signed by the persons listed on Schedule B heretoMaster Servicer and Issuer Administrator, and such agreements shall be in full force the Sponsor and effect on College Loan Corporation, each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of Master Servicer, Issuer Administrator, College Loan Corporation and the Sponsor is a limited liability company, in good standing under the laws of its respective state of organization; each having the full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under each of the Basic Documents to which it is a party.
(ii) Each Basic Document to which each of Master Servicer, the Sponsor, Issuer Administrator and College Loan Corporation is a party has been duly authorized, executed and delivered by such party and each such agreement is the legal, valid and binding obligation of such party, enforceable against it, in accordance with its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(iii) Neither the execution and delivery by Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation, of the Basic Documents to which it is a party, nor the consummation by such parties of the transactions contemplated therein nor the fulfillment of the terms thereof by such parties will conflict with, result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the limited liability company agreement of Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation or of any material indenture or other material agreement or instrument to which Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation is a party or by which Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation.
(iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry and reasonable investigation, threatened against Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation before or by any governmental authority that might materially and adversely affect the performance by Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation of its obligations under, or the validity or enforceability of, any Basic Documents to which it is a party.
(v) No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by Master Servicer, the Sponsor, Issuer Administrator or College Loan Corporation of any Basic Document to which it is a party.
(i) You shall have received opinions addressed to you of _________________, in their capacity as counsel to the several UnderwritersDelaware Trustee, and as Delaware counsel to the Company and the Sponsor, dated the Closing Date and in form and substance satisfactory to you and your counsel.
(j) You shall have received an opinion addressed to you of counsel to the Trustee and the Eligible Lender Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel.
(k) You shall have received certificates addressed to you dated the Closing Date of any two of the executive officers of the Sponsor, the Company, Master Servicer and Issuer Administrator in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Sponsor, the Company, Master Servicer and Issuer Administrator, as applicable, contained in each of the Basic Documents to which it is a party are true and correct in all material respects, that each of the Sponsor, the Company, Master Servicer and Issuer Administrator has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at the time of signing this Agreement and on or prior to the Closing Date, you (ii) that each of the Sponsor, the Company, Master Servicer and Issuer Administrator has reviewed the Prospectus and that the information therein regarding the Sponsor, the Company, Master Servicer and Issuer Administrator, as applicable, is fair and accurate in all material respects, and (iii) since the date set forth in such counsel certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change, in or affecting particularly the business or properties of the Sponsor, the Company, Master Servicer and Issuer Administrator, as applicable, has occurred.
(l) You shall have received each evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Financed Eligible Loans and every additional document, letter, opinion, the proceeds thereof to the Trustee.
(m) You shall have received a certificate or other item addressed to you dated the Closing Date from a responsible officer acceptable to you of the Eligible Lender Trustee in form and executed in a manner reasonably substance satisfactory to you and such counsel, as you or such your counsel may reasonably request in connection with and to which shall be attached each preliminary prospectus, Guarantee Agreement.
(n) The Underwriters shall have received on the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at Closing Date from [Accountants] a letter dated the Closing Date. If any , and in form and substance satisfactory to the Representatives, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Eligible Loans and setting forth the results of such specified procedures.
(o) All the representations and warranties of each of the conditions herein provided for Sponsor, Master Servicer, Issuer Administrator, College Loan Corporation or the Company contained in this Section Agreement and the other Basic Documents to which it is a party shall not have been fulfilled be true and correct in all material respects on and as of the date indicated, all obligations hereof and on and as of the several Closing Date as if made on and as of the Closing Date and the Underwriters under shall have received certificates, dated the Closing Date and signed by an executive officer of the Sponsor to the effect set forth in this Agreement may be cancelled by Section 6(p) and in Section 6(q) hereof.
(p) The Sponsor, Master Servicer, the Representatives by notifying the Company of such cancellation on Company, Issuer Administrator or College Loan Corporation shall not have failed at or prior to the applicable Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(q) The Underwriters shall have received by instrument dated the Closing Date (at the option of the Representatives), in lieu of or in addition to the legal opinions referred to in this Section 6, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents.
(r) Each class of Class A Notes shall be rated "AAA", "AAA" and "Aaa", respectively, by [Fitch, Inc.] ("[Fitch]"), [Standard & Poor's Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies] ("[S&P]"), and [▇▇▇▇▇'▇ Investors Services], Inc. ("[Moody's]"), the Class B Notes shall be rated "A", "A-" and "A2", or higher, by [Fitch], [S&P] and [Moody's], respectively, and that neither [Fitch], [S&P] nor [Moody's] have placed the Notes under surveillance or review with possible negative implications.
(s) You shall have received a certificate addressed to you dated the Closing Date of the Guaranty Agency to the effect that (i) the information in the Prospectus with respect to the Guaranty Agency is true and correct and is fair and accurate in all material respects and (ii) that since the date of the Prospectus, no material adverse change in or affecting the business or properties of the Guarantee Agency has occurred.
(t) You shall have received such other opinions, certificates and documents as are required under the Indenture as a condition to the issuance of the Notes. The Representatives may in their sole discretion waive on behalf Sponsor will provide or cause to be provided to you such conformed copies of such of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunderforegoing opinions, whether in respect of the First Closing Datenotes, an Additional Closing Date or otherwiseletters and documents as you reasonably request.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Firm Securities hereunder are subject to the following conditions:
(a) a. The Registration Statement shall have become effective not later than 10:00 a.m. New York City time, on the day following the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings required by Rules 424(b) and 430A under the Securities Act and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, timely made.
b. You shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, reasonably satisfied that since the respective dates as of which information is givengiven in the Registration Statement and Prospectus, (i) there shall not have been any change in the capital stock (other than pursuant to the exercise of outstanding options disclosed in the Prospectus or granted under the stock option plans described in the Prospectus) of the Company or any of the Subsidiaries or any material change in the indebtedness (other than in the ordinary course of business) of the Company or any of the Subsidiaries, (ii) except as set forth or contemplated by the Registration Statement or the Prospectus, no material adverse verbal or written agreement or other transaction shall have been entered into by the Company or any of the Subsidiaries that was not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Company and the Subsidiaries, (iii) no loss or damage (whether or not insured) to the property of the Company or any of the Subsidiaries shall have been sustained that has a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Company or any of the Subsidiaries that is material to the Company and the Subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened, and (v) there shall not have been any material change in the condition (financial or otherwise), business, management, properties, net worth, results or operations or prospects or results of operations of the Company and the Subsidiaries.
c. You shall have received an opinion of Blau, Kramer, Wactlar & Lieb▇▇▇▇▇, ▇.C., counsel for the Company and the Selling Stockholders, dated the Closing Date, in form and substance reasonably satisfactory to you and your counsel, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to own, lease and operate its subsidiariesproperties and to conduct its business as presently conducted and as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto), taken as and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify does not have a whole, from that Material Adverse Effect.
(ii) The Company has no subsidiaries material to its operations or business other than the Subsidiaries set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred Exhibit 21.1 to or contemplated in the Registration Statement; and each of the Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (iv) except as set forth and any amendment or supplement thereto); and is duly registered and qualified to conduct its business and is in good standing in each preliminary prospectus jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify does not have a
(iii) The authorized capital stock of the Company, including the Common Stock and the ProspectusWarrants, no action, suit or proceeding at law or conforms in equity shall be pending or, all material respects to the Company’ knowledge, threatened against description thereof under the Company or any caption "Description of its Subsidiaries that would be Securities" in the Prospectus and such statements present fairly the matters respecting such securities required to be set forth in the Registration StatementStatement and the Prospectus.
(iv) All of the outstanding shares of Common Stock have been, and as of the Closing Date will be, duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights; the Firm Shares to be issued and sold to the Underwriters by the Company hereunder have been duly authorized, and when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive rights; and the delivery of certificates for the Firm Shares and the Additional Shares pursuant to the terms of this Agreement and payment for the Firm Shares and the Additional Shares will pass valid title to the Firm Shares and the Additional Shares, free and clear of any claim, encumbrance or defect in title to the several Underwriters purchasing the Firm Shares and the Additional Shares, assuming that such Underwriters purchased such shares in good faith and without notice of any adverse claim.
(v) The Firm Shares and Additional Shares to be sold to the Underwriters by the Selling Stockholders were duly authorized and validly issued, are fully paid and nonassessable, and were not issued in violation of any preemptive or similar rights.
(A) The Registration Statement has become effective under the Securities Act, and to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings shall for that purpose have been instituted or are pending or contemplated by the Commission; (B) the Registration Statement and the Prospectus and each amendment or supplement thereto (except for the financial statements and the notes thereto, schedules, and other financial and statistical data included 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 (C) to the knowledge of such counsel, the descriptions in the Prospectus of statutes, regulations and governmental proceedings insofar as they purport to summarize certain of the provisions thereof, are accurate and present fairly in all material respects the information required to be pending orpresented.
(vii) Neither the Company nor any of the Subsidiaries is in violation of its certificate or articles of incorporation or bylaws, or other organizational documents, or to the knowledge of such counsel, of any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of the Subsidiaries or of any decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries, or to the knowledge of such counsel, in default in the performance of any obligation, agreement or condition contained in (A) any bond, debenture, note or any other evidence of indebtedness, or (B) any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound; and to the knowledge of such counsel, there does not exist any state of facts that constitutes an event of default on the part of the Company or any Subsidiary as defined in such documents or which, with notice or lapse of time or both, would constitute such an event of default.
(viii) The execution and delivery of this Agreement and the performance by the Company of its obligations under this Agreement, including the issuance and sale of the Offered Securities on the terms set forth in this Agreement, have been duly and validly authorized by the Company, and this Agreement has been duly executed and delivered by the Company.
(ix) The execution and delivery of the Warrant Agreement and the performance by the Company of its obligations under the Warrant Agreement have been duly and validly authorized by the Company, and the Warrant Agreement has been duly executed and delivered by the Company, and assuming due authorization, execution and delivery by each of the other parties thereto, constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms subject to the Enforceability Exceptions.
(x) The execution and delivery of the Managing Underwriters' Warrant Agreement and the performance by the Company of its obligations under the Managing Underwriters' Warrant Agreement have been duly and validly authorized by the Company, and the Managing Underwriters' Warrant Agreement has been duly executed and delivered by the Company, and assuming due authorization, execution and delivery by each of the other parties thereto, constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms subject to the Enforceability Exceptions.
(xi) The execution and delivery of the Registration Rights Agreement and the performance by the Company of its obligations under the Registration Rights Agreement have been duly and validly authorized by the Company, and
(xii) Such counsel has reviewed all agreements, contracts, indentures, leases or other documents or instruments referred to in the Registration Statement and the Prospectus and such agreements, contracts, indentures, leases or other documents or instruments are fairly summarized and disclosed therein, and filed as exhibits thereto as required, and such counsel does not know of any agreements, contracts, indentures, leases or other documents or instruments required to be so summarized and disclosed or filed which have not been so summarized, disclosed and filed.
(xiii) The Warrants have been duly and validly authorized by the Company for issuance and sale pursuant to this Agreement, and when issued and countersigned in accordance with the terms of the Warrant Agreement and delivered against payment therefor in accordance with the terms hereof and thereof, will be validly issued and the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms subject to the Enforceability Exceptions; the Company has duly reserved a sufficient number of its shares of Common Stock for the issuance of the Warrant Shares upon the exercise of the Warrants; the Company has duly and validly authorized the issuance of such Warrant Shares upon the exercise of the Warrants; upon the exercise of the Warrants and the payment of the exercise price thereof, the respective Warrant Shares will be validly issued, fully paid and nonassessable, and not issued in violation of any preemptive or similar rights.
(xiv) The Managing Underwriters' Warrant has been duly and validly authorized by the Company for issuance and sale pursuant to this Agreement, and when payment is made therefor in accordance with the terms hereof and the Managing Underwriters' Warrant Agreement and assuming due authorization, execution and delivery by each other party thereto, will be validly issued and the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms subject to the Enforceability Exceptions; the Company has duly reserved a sufficient number of its shares of Common Stock for the issuance of the shares of Common Stock upon the exercise of the Managing Underwriters' Warrant, including the shares of Common Stock issuable upon the exercise of the Warrants issuable upon the exercise of the Managing Underwriters' Warrant; the Company has duly and validly authorized the issuance of the shares of Common Stock upon the exercise of the Managing Underwriters' Warrant, including the shares of Common Stock issuable upon the exercise of the Warrants issuable upon the exercise of the Managing Underwriters' Warrant; upon the exercise of the Managing Underwriters' Warrant and the shares of
(xv) To the knowledge of such counsel, neither the issuance and sale of the Offered Securities, the execution, delivery or performance of this Agreement and the other Operative Documents by the Company nor the consummation by the Company of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official or conflicts with or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws, or other organizational documents, of the Company or any of the Subsidiaries (other than approval or consent required under the securities laws or state blue sky laws) or (B) conflicts or will conflict with or constitutes a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound, or violates any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of the Subsidiaries or any of their respective properties, or results in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject.
(xvi) To the knowledge of such counsel, except as described in the Prospectus, the Company does not have outstanding any options to purchase, or any warrants to subscribe for, or any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of Common Stock or any such options, warrants or convertible securities or obligations.
(xvii) Except as set forth in the Prospectus, to the Company’ knowledgeknowledge of such counsel, the Company and each of the Subsidiaries has good and marketable title to all property (real and personal) described in the Prospectus as being owned by it, free and clear of all liens, claims, security interests or other encumbrances except (A) such as are described in the financial statements included in the Prospectus or (B) such as are not materially burdensome and do not interfere in any material respect with the conduct of the business of the Company and the Subsidiaries taken as a whole; to the knowledge of such counsel the property (real and personal) held under lease by each of the Company and the Subsidiaries is held by it under valid, subsisting and enforceable leases, with only such
(xviii) To the knowledge of such counsel, (A) there are no legal or governmental proceedings pending or threatened against the Company or any of its Subsidiaries before the Subsidiaries, or by to which the Company or any commissionof the Subsidiaries, board or administrative agency any of their property, is subject, that are required to be described in the United States Registration Statement or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
Prospectus (c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto) that are not described as required therein, contains an untrue statement of a fact and (B) there are no agreements, contracts, indentures, leases or other instruments that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact are required to be stated therein described in the Registration Statement or necessary in order the Prospectus or to make be filed as an exhibit to the statements therein Registration Statement that are not misleadingdescribed or filed as required, as the case may be.
(dxix) On each Closing Date you shall have received a signed opinion, dated as To the knowledge of such datecounsel, neither the Company nor any of ▇▇▇▇▇▇the Subsidiaries is in violation of any law, ▇▇▇▇▇▇▇▇ & Markiles LLPordinance, counsel administrative or governmental rule or regulation applicable to the several Underwriters, with respect to Company or any of the sufficiency Subsidiaries or of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and any decree of any court or governmental agency or body having jurisdiction over the Company shall have furnished to such counsel such documents as they may have reasonably requested for or any of the purpose of enabling them to pass upon such mattersSubsidiaries.
(exx) On each Closing Date you shall have received The Company is not an "investment company" under the signed opinionInvestment Company Act of 1940, dated as amended, and if the Company conducts its business and uses the proceeds of the offering as set forth in the Prospectus, will not become an "investment company" and will not be required to register under such act.
(xxi) To the knowledge of such datecounsel, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for Company and each of the other Underwriters.
(f) At the time of the signing of this Agreement Subsidiaries have all permits as are necessary to own their respective properties and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in conduct their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.respective businesses substantially
Appears in 1 contract
Sources: Underwriting Agreement (Herley Industries Inc /New)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Offered Securities hereunder are subject to the accuracy of the representations and warranties of the Company set forth herein on and as of the Closing Date and to the following further conditions:
(a) The Registration Statement That there shall not have become effective under occurred any change, or any development involving a prospective change, in or affecting the Act andbusiness or properties of the Company or any of its subsidiaries, at not contemplated by the Closing DateProspectus which, in the Underwriters’ reasonable opinion, is so material and adverse as to make it impracticable to proceed with the public offering or the delivery of the Offered Securities on the terms and in the manner contemplated in the Prospectus.
(b) That (i) no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any amendment or supplement thereto shall have been issued and no proceedings for that purpose shall have been instituted before taken or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on at or prior to the Closing Date; , (ii) there shall not have been any material change in the Registration Statement, each preliminary prospectus and the Prospectus and any amendments capital stock or supplements thereto shall in all material respects conform to the requirements long-term debt of the Act and Company from that set forth in or contemplated by the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus General Disclosure Package or the Prospectus, or 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; ,
(iii) there shall not have been, since the respective dates as of which information is given, no been any material adverse change change, financial or otherwise, in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, subsidiaries taken as a whole, whole from that set forth in the Registration Statement, each preliminary prospectus General Disclosure Package or the Prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and (iv) neither the Company nor any of its Subsidiaries subsidiary shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactionto the Company and its subsidiaries taken as a whole, contract or agreement not in the ordinary course of business other than as referred to those reflected in or contemplated in by the Registration StatementGeneral Disclosure Package or the Prospectus; and (iv) except as that the Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, and signed by the President and either the Chief Financial Officer, the Treasurer or an Executive Vice President of the Company to the effect set forth in each preliminary prospectus this Section 8(b) and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, Section 8(f) and as to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations and warranties of the Company set forth in Section 1 hereof contained herein on and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Golden West Financial Corp /De/)
Conditions of the Underwriters’ Obligations. The several respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on each Delivery Date, 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 Registration Statement Prospectus shall have become effective under been timely filed with the Act and, at Commission in accordance with Section 5(a)(i); the Closing Date, Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the qualifications use of the Shares Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding or examination for that such purpose shall have been instituted before or, initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the knowledge use of the Company or form of the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityRegistration Statement.
(b) At each Closing Date, (i) the representations No Underwriter shall have discovered and warranties of disclosed to the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) such Delivery Date that the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the ProspectusPricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 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 Stock, the Registration Statement, the Prospectus and 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 Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) At the Delivery Date, Shartsis F▇▇▇▇▇ LLP shall have furnished to the Representative its written opinion and negative assurance letter, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit B-1.
(e) At the Delivery Date, S▇▇▇▇▇ ▇▇▇▇▇▇, Chief Legal Officer of the Company shall have furnished to the Representative a certificate with respect to intellectual property and other matters, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit B-2.
(f) At the Delivery Date, the Representative shall have received from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received from BDO USA, LLC a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of BDO USA, LLC referred to in the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representative a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial 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) The Company shall have furnished to the Representative a certificate, dated such Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1 are true and correct on and as of such Delivery Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact or and did not and do not omit to state any 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 (iiiB) there since the Effective Date, no event has occurred that is required to be set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(j) Neither the Company nor any of its subsidiaries shall have beensustained, since the respective dates as date of which information is giventhe latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, no material adverse (i) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock, long-term debt or short-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), business, prospects or results of operations operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries, subsidiaries taken as a whole, from that set forth the effect of which, in any such case described in clause (i) or (ii), is, in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date reasonable judgment of the Registration StatementRepresentative, so material and neither adverse as to make it impracticable or inadvisable to proceed with the Company nor any public offering or the delivery of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not the Stock being delivered on such Delivery Date on the terms and in the ordinary course of business other than as referred to or manner contemplated in the Registration Statement; Prospectus.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, The Nasdaq Global Market or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) except there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as set forth in each preliminary prospectus and a result of terrorist activities after the Prospectus, no action, suit date hereof (or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against effect of international conditions on the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency financial markets in the United States or elsewhereshall be such), wherein an unfavorable decisionas to make it, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate reasonable judgment of the principal executive officer and Representative, impracticable or inadvisable to proceed with the principal financial public offering or accounting officer delivery of the Company, dated as of Stock being delivered on such Closing Date, evidencing compliance with Delivery Date on the provisions of this Subsection 5(b), terms and confirming in the accuracy of manner contemplated in the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such dateProspectus.
(cl) No Underwriter The Nasdaq Global Market shall have discovered and disclosed to approved the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested Stock for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Marketlisting, subject only to official notice of issuance.
(hm) FINRA shall have confirmed that it has not raised any objection with respect The Lock-Up Agreements between the Representative and the executive officers and directors of the Company set forth on Schedule 2, delivered to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At Representative on or before the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing such Delivery Date.
(j) . All proceedings taken at opinions, letters, evidence and certificates mentioned above or prior elsewhere in this Agreement shall be deemed to each Closing Date be in connection compliance with the sale of the Shares shall be reasonably satisfactory provisions hereof only if they are in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, for the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseUnderwriters.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement All actions required to be taken and all filings required to be made by EdLinc, SLFC or the Transferor under the Securities Act and the Trust Indenture Act prior to the sale of the Notes shall have become effective under the Act and, at been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications sale of the Shares Notes or the qualification of the Indenture shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of EdLinc, SLFC, the Company Transferor or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authoritySky Authorities.
(b) At each Closing DateAny requests to the Commission for inclusion of additional or supplemental information in the Registration Statement or the Prospectus shall have been complied with by EdLinc, (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 such Closing Date SLFC and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part Transferor to be performed or complied with on or prior to the Closing Date; your reasonable satisfaction.
(iic) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since Since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth given in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto), contains an untrue statement except as may otherwise be stated therein or contemplated thereby, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other) or net worth of a fact that EdLinc, SLFC or the Transferor not contemplated by the Registration Statement, which in the reasonable opinion of counsel to the Representatives is materialRepresentative, would materially adversely affect the market for the Notes, or omits (ii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue or which, in the opinion of EdLinc and its counsel SLFC and its counsel, the Transferor and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in the Registration Statement or Prospectus in order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Notes.
(d) On At the time of the Closing, (i) the Notes, each Closing Date you of the Basic Documents, EdLinc's Program Agreements, the Transferor's Program Agreements, SLFC's Program Agreements, the Investment Agreement, the Trustee's Program Agreements, the Transferor Trustee's Program Agreements and this Agreement shall have received a signed opinionbeen duly authorized, executed and delivered, and in full force and effect, and, in the case of the Notes, authenticated; (ii) EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution and the Transferor's Authorizing Resolution shall have been duly adopted by EdLinc, SLFC and the Transferor, as applicable, and shall be in full force and effect; (iii) the contracts between the United States Underwriting Agreement dated September 19, 2002 Secretary of Education and each of the Guarantee Agencies shall be duly authorized, executed and delivered and in full force and effect; (iv) the documents referred to in clauses (i) through (iii) above shall be in forms satisfactory to the Representative and shall not have been amended, modified or supplemented from the respective forms heretofore delivered to the Representative, except as of may have been agreed to in writing by the Representative, and EdLinc, SLFC and the Transferor shall have duly adopted and there shall be in full force and effect such dateadditional resolutions and agreements, as shall, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Minneapolis, Minnesota, be necessary in connection with the transactions contemplated hereby; and (v) EdLinc, SLFC, the Transferor, the Trustee, the Auction Agent, the Broker-Dealers, the Investment Agreement Provider, the Transferor's Trustee, the EdLinc 1998 Indenture Trustee, ACS, EASCI, GLELSI and the Guarantee Agencies shall perform or have performed all their respective obligations required under or specified in this Agreement, the Basic Documents, the Investment Agreement, EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution, the Transferor's Authorizing Resolution, EdLinc's Program Agreements, the Transferor's Program Agreements, SLFC's Program Agreements and the Trustee's Program Agreements, to be performed simultaneously with or prior to Closing.
(e) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ & Whitney LLP, Special Counsel to EdLinc and the Transferor, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(f) The Underwriters shall have received on the Closing Date the approving opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Date and in form and scope satisfactory to the Representative and its counsel, and a letter addressed to the Underwriters to the effect that the Underwriters may rely on such opinion and consenting to the references to it in the Prospectus.
(g) The Underwriter shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, counsel for EdLinc and SLFC, dated the Closing Date and addressed to the Underwriter, in form and scope satisfactory to the Underwriter and its counsel.
(h) The Underwriters shall have received on the Closing Date an opinion of Davenport, Evans, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Trustee, the EdLinc 1998 Indenture Trustee and the Transferor's Trustee, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(i) [Reserved]
(j) The Underwriters shall have received on the Closing Date opinions of counsel for the Investment Agreement Providers, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(k) The Underwriter shall have received on the Closing Date opinions of counsel for such Guarantee Agencies, if any, specified by the Representative, each dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel. Underwriting Agreement dated September 19, 2002
(l) The Underwriters shall have received on the Closing Date an opinion or opinions of ▇▇▇▇▇ & Lardner, counsel for the Underwriters, dated the Closing Date, and addressed to the Underwriters, in form and scope satisfactory to the Representative.
(m) The Underwriters shall have received on the Closing Date from ▇▇▇▇ ▇▇▇▇▇▇ LLP, certified public accountants, a comfort letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain financial information pertaining to EdLinc and to the Financed Student Loans and setting forth the results of such specified procedures.
(n) All the representations and warranties of EdLinc, SLFC and the Transferor contained in this Agreement, EdLinc's Program Agreements, the Transferor's Program Agreements, SLFC's Program Agreements and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date.
(o) EdLinc, SLFC and the Transferor each shall have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(p) The Underwriters shall have received by instrument dated the Closing Date (at the option of the Representative), in addition to the opinions referred to in clauses (d) through (k) of this Section 6, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents or to ▇▇▇▇▇'▇ and Fitch.
(q) The Underwriters shall have received evidence satisfactory to them that ▇▇▇▇▇'▇ and Fitch have rated (i) the Series 2002-1 Senior Notes "Aaa" and "AAA", respectively, and (ii) the Series 2002-1 ▇▇▇▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇, "▇▇" and "A", respectively, and there has not been any announcement by ▇▇▇▇▇'▇ & Company Certified Public Accountants PC, addressed or Fitch that (Y) it is downgrading any of its ratings assigned to the Underwriters Notes or (with executed copies for each of the UnderwritersZ) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect is reviewing its ratings assigned to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior Notes with a view to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunderpossible downgrading, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall with negative implications, or direction not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisedetermined.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before instituted, threatened or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, which in the opinion of the Representative, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth or (iii) any event or development which makes any statement made in the Registration Statement, each preliminary prospectus and Disclosure Package or Prospectus untrue or which, in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth change in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company Disclosure Package or any of its Subsidiaries before or by any commission, board or administrative agency Prospectus in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, Disclosure Package or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as of such date, an opinion addressed to you of ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇ & Markiles LLP, or other counsel satisfactory to you, dated the several UnderwritersClosing Date, in form and substance satisfactory to you and your counsel with respect to the sufficiency status of all corporate proceedings the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Eligible Lender Trust Agreements, the Indenture, the Trust Agreement, and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letter, dated, respectively, as an opinion addressed to you of each such date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCLLP, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning “true sale,” “non-consolidation” and “first perfected security interest” and certain other issues with respect to the transfer of the Trust Student Loans from the SLC to SLC Receivables, SLC Receivables to the Company and from the Company to the Indenture Trustee.
(d) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Initial FWP and the Prospectus under the headings “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA Considerations”, to the extent such statements summarize the material tax consequences and the material consequences under ERISA, respectively, of the purchase, beneficial ownership and disposition of the Notes to holders thereof described therein, are correct in all material respects.
(e) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as Underwriters’ Counsel, dated the Closing Date, in form and substance satisfactory to you.
(g) As You shall have received an opinion and disclosure letters addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the effective date of Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Registration Statement, the Common Stock shall be listed on Disclosure Package and the NASDAQ Global Market, subject to official notice of issuanceProspectus certain matters arising under the Trust Indenture Act and the ▇▇▇▇ ▇▇▇.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives You shall have received an agreement substantially opinions addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or other counsel satisfactory to you in the form of Annex A hereto signed by the persons listed on Schedule B heretotheir capacity as counsel to SLC and SLC Receivables, and such agreements shall be in full force and effect on each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of ____________________, in its capacity as counsel to the several UnderwritersOwner Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel.
(j) You shall have received an opinion addressed to you of ____________________, in its capacity as counsel to the Indenture Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) The Indenture Trustee is a national banking association duly organized and validly existing under the laws of the United States.
(ii) The Indenture Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture and the Custody Agreement.
(iii) The execution and delivery of each of the Indenture and the Custody Agreement, and at the time performance by the Indenture Trustee of signing this its obligations under the Indenture and the Custody Agreement, have been duly authorized by all necessary action of the Indenture Trustee and each has been duly executed and delivered by the Indenture Trustee.
(iv) The Indenture and the Custody Agreement constitute valid and binding obligations of the Indenture Trustee enforceable against the Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the Indenture and the Custody Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Neither the consummation by the Indenture Trustee of the transactions contemplated in the Indenture and the Custody Agreement nor the fulfillment of the terms thereof by the Indenture Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Indenture Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Indenture Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Indenture Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Indenture Trustee or any of its subsidiaries.
(vii) The Eligible Lender Trustee is an “eligible lender” for purposes of the FFELP Program in its capacity as Indenture Trustee with respect to Trust Student Loans held under the Indenture.
(k) You shall have received an opinion addressed to you of ____________________, in its capacity as counsel for the Eligible Lender Trustee and the Indenture Administrator, in form and substance satisfactory to you.
(l) [Reserved]
(m) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of SLC, SLC Receivables and the Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of SLC, SLC Receivables or the Servicer, as the case may be, contained in the respective SLC Sale Agreement, SLC Receivables Sale Agreement, the Servicing Agreement, the Subservicing Agreement and the Administration Agreement, as applicable, are true and correct in all material respects, that each of SLC, SLC Receivables and the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, you (ii) that they have reviewed the Prospectus and such counsel the Disclosure Package and that the information therein regarding SLC, SLC Receivables or the Servicer, as applicable, is fair and accurate in all material respects, and (iii) since the first Time of Sale, no Material Adverse Effect or any development involving a prospective Material Adverse Effect, in or affecting particularly the business or properties of SLC, SLC Receivables or the Servicer, as applicable, has occurred.
(n) You shall have received each certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of the Sub-Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and every additional documentwarranties of the Sub-Servicer contained in the Subservicing Agreement are true and correct in all material respects, letterthat the Sub-Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, opinion(ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding the Sub-Servicer is fair and accurate in all material respects, certificate and (iii) since the date of the Time of Sale, except as may be disclosed in the Prospectus or other item dated and executed in the Disclosure Package, no Material Adverse Effect or any development involving a manner reasonably prospective Material Adverse Effect in, or affecting particularly the business or properties of the Sub-Servicer has occurred.
(o) You shall have received evidence satisfactory to you and such counselthat, as you on or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at before the Closing Date. If any , UCC-1 financing statements have been or are being filed in the office of the conditions herein provided for Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Trust Student Loans and the proceeds thereof to the Indenture Trustee.
(p) [Reserved]
(q) The Underwriters shall have received on the Closing Date from ____________________, accountants to the Company, a letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to (i) certain information regarding the Trust Student Loans and (ii) the static pool data and setting forth the results of such specified procedures.
(r) All the representations and warranties of the Company contained in this Section Agreement and the Basic Documents shall not have been fulfilled be true and correct in all material respects on and as of the date indicated, all obligations hereof and on and as of the several Closing Date as if made on and as of the Closing Date and the Underwriters under this Agreement may be cancelled shall have received a certificate, dated the Closing Date and signed by the Representatives by notifying an executive officer of the Company of such cancellation on to the effect set forth in this Section 8(r) and in Section 8(s) hereof.
(s) The Company shall not have failed at or prior to the applicable Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date. .
(t) The Representatives may in their sole discretion waive on behalf of Underwriters shall have received by instrument dated the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional in lieu of or in addition to the legal opinions referred to in this Section 8, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents.
(u) You shall have received certificates addressed to you dated the Closing Date of ____________________, ____________________, ____________________ and ____________________ (each, a “Significant Guarantor”) to the effect that (i) the information in the Prospectus and the Disclosure Package with respect to the applicable Significant Guarantor does not contain any untrue statement of material fact or otherwiseomit to state a material fact required to be stated therein or necessary to make the statements about the Significant Guarantor therein, in the light of the circumstances under which they are made, not misleading, and (ii) there are no proceedings pending or overtly threatened in writing against the Significant Guarantor in any court or before any governmental authority or arbitration board or tribunal, wherein an unfavorable decision, ruling or finding is likely and would materially adversely affect the performance by the Significant Guarantor to carry on its business substantially as now conducted.
(v) The Notes shall be rated “____” by Fitch, Inc. (“Fitch”), “____” by Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and “____” by ▇▇▇▇▇’▇ Investors Service (“Moody’s); and neither Fitch, S&P nor Moody’s has placed the Notes under surveillance or review with possible negative implications.
(w) You shall have received evidence satisfactory to you of the completion of all actions necessary to effect the transfer of the Trust Student Loans as described in the Prospectus and the Disclosure Package and the recordation thereof on SLC’s, SLC Receivables’ and the Sub-Servicer’s computer systems.
(x) You shall have received such further information, certificates and documents as the Representative may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incidental hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative and its counsel.
(y) You shall have received such other opinions, certificates and documents as are required under the Indenture as a condition to the issuance of the Notes. The Company will provide or cause to be provided to you such conformed copies of such of the foregoing opinions, notes, letters and documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Receivables I Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters hereunder under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its respective covenants and agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective under the Act andeffective, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued issued, and no proceedings for that purpose shall have been instituted before or threatened or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing Date, The Underwriters shall be satisfied that (i) the representations and warranties as of the Company contained Effective Date, the statements made in this Agreement shall be the Registration Statement and the Prospectus were true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or Statement nor the Prospectus, or any amendment or supplement thereto, shall contain any untrue statement of a material fact or omit Prospectus omitted to state any material a fact required to be stated therein or that is necessary to make the statements therein not misleading; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment; (iii) there shall have been, since the respective dates as of which information is givengiven in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, no there has not been any material adverse change or any development involving a prospective material adverse change in the business, management, properties, assets, rights, condition (financial or otherwise), business, prospects ) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from that set forth transactions in the Registration Statementordinary course of business, each preliminary prospectus and the Prospectussince such dates, except changes that in the Registration Statement indicates might occur after the effective date ordinary course of the Registration Statementbusiness, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or subsidiaries has entered into any material transaction, contract or agreement transaction not in the ordinary course of business other than as referred to or contemplated in the Registration StatementStatement in the form in which it originally became effective and the Prospectus contained therein; and (iv) except as set forth neither the Company nor any of its subsidiaries has any material contingent obligations that are not disclosed in each preliminary prospectus the Registration Statement and the Prospectus, ; (v) there are no action, suit or proceeding at law or in equity shall be pending or, to the Company’ 's knowledge, threatened against legal proceedings to which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against subsidiaries is a party or of which property of the Company or any of its Subsidiaries before or by any commission, board or administrative agency subsidiaries is subject that are material and that are not disclosed in the United States Registration Statement and the Prospectus; (vi) there are not any franchises, contracts, leases or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably other documents that are required to be expected, individually or in filed as exhibits to the aggregate, to result in a Material Adverse EffectRegistration Statement that have not been filed as required; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of (vii) the representations and warranties of the Company set forth herein are true and correct in Section 1 hereof and confirming that all conditions set forth herein material respects as of the Closing Date or any later date on which Option Stock is to be met by purchased, as the Company have been met as of such datecase may be.
(c) No Underwriter On or prior to the Closing Date, the legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements and financial information contained therein), shall have discovered and disclosed been approved at or prior to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of by ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ & Markiles LLP▇▇▇▇▇▇, P.C., counsel for the Underwriters. The Underwriters shall have received from counsel to the several Underwriters, such opinion or opinions with respect to the sufficiency issuance and sale of all corporate proceedings the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents information as they may have reasonably requested for the purpose of enabling request to enable them to pass upon such matters.
(ed) On each the Closing Date you Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the signed opinionUnderwriters, dated as the Closing Date or, if related to the later sale of Option Stock, such later date, of K&L Gates Fenwick & West LLP, counsel to the Company, to the effect set forth in form reasonably satisfactory Exhibit A hereto. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel for the Underwritersdeems proper, together with signed or photostatic copies thereof for each on certificates of responsible officers of the other UnderwritersCompany and public officials.
(fe) At the time of the signing execution of this Agreement and on each Closing DateAgreement, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCCo. a letter (the "Original Letter"), in form and substance satisfactory to you and ▇▇▇▇▇▇▇▇▇ & Co., addressed to the Underwriters and dated the date hereof (with executed copies for each i) confirming that ▇▇▇▇▇▇▇▇▇ & Co. are independent public accountants within the meaning of the UnderwritersSecurities Act and the applicable published rules and regulations thereunder 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 Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm, based upon the procedures described therein, with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" as the Representatives may request and ▇▇▇▇▇▇▇▇▇ & Co. are willing to perform and report upon. On or prior to the Closing Date and any later date on which Option Stock is purchased, you shall also have received from ▇▇▇▇▇▇▇▇▇ & Co. a letter (the "Bring-down Letter"), in form heretofore approved and substance satisfactory to you and ▇▇▇▇▇▇▇▇▇ & Co., addressed to the Underwriters and dated the Closing Date and any later date on which Option Stock is purchased, which (i) confirms that ▇▇▇▇▇▇▇▇▇ & Co. are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder, (ii) confirms that, based upon the procedures described in their letter delivered to the Underwriters concurrently with the execution of this Agreement, but carried out to a date not more than three business days prior to the Closing Date or such later date on which Option Stock is purchased, the statements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later date, as the case may be, and (iii) sets forth any revisions and additions to the statements and conclusions set forth in the Original Letter that are necessary to reflect any changes in the facts described in the Original Letter since the date of the Original Letter or to reflect the availability of more recent financial statements, data or information. The Bring-down Letter(s) shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company or any of its subsidiaries which in your sole judgment makes it impractical or inadvisable to proceed with the public offering of the Shares or the purchase of the Option Stock as contemplated by counsel the Prospectus.
(f) The Company shall deliver to you a copy of a letter from ▇▇▇▇▇▇▇▇▇ & Co., addressed to the Company, stating the results of their review of the Company's internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company's balance sheets as of December 31, 2002 and as of December 31, 2003, and the related statements of operations, stockholders' equity and cash flows for the Underwritersthree-year period ended December 31, 2003.
(g) As Prior to the Closing Date, and on any later date on which Option Stock is purchased, you shall have received a certificate, dated the Closing Date or such later date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of the Company, stating that the respective signers of said certificate have carefully examined the Registration Statement in the form in which it originally became effective and the Prospectus contained therein and any amendments or supplements thereto and this Agreement, and that the statements included in sub-paragraphs (b)(i) through (vii) of this Section 7 are true and correct.
(h) Prior to the Closing Date, and on any later date on which Option Stock is purchased, you shall have received a certificate, dated the Closing Date or such later date, as the case may be, signed by the Secretary of the Registration StatementCompany to the effect that, as of the Closing Date or any later date on which Option Stock is purchased, as the case may be, the Common Stock shall be listed Secretary certifies as to the accuracy of the Company's certificate of incorporation and bylaws, the resolutions of the board of directors relating to the offering contemplated hereby, the form of stock certificate representing the Shares, and copies of all written communications with the Commission; as to the execution and delivery of this Agreement; as to the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; as to the approval of the Shares for listing on the NASDAQ Global Nasdaq National Market; as to the Company's compliance with all agreements and performance or satisfaction of all conditions required hereunder; as to the consideration received for all outstanding shares of the Company's Common Stock; and as to such other matters as Underwriters' counsel may reasonably request.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) You shall have been furnished evidence in the usual written or electronic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to you, of the qualification referred to in paragraph (f) of Section 6 hereof.
(k) Prior to the Closing Date, the Shares shall have been duly authorized for inclusion on the Nasdaq National Market, subject only to official notice of issuance, and such authorization shall not have been withdrawn.
(hl) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at On or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each from the holders of at least ninety-seven percent (97%) of the outstanding capital stock of the Company (calculated on a fully-diluted basis), including but not limited to all directors, executive officers, and every additional documentOne Percent Holders, letteragreements, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and you, stating that such counselperson or entity will not, as you without the prior written consent of ▇▇ ▇▇▇▇▇▇▇▇▇ + Co., LLC, directly or indirectly (i) sell, offer, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, transfer the economic risk of ownership in, make any short sale, lend, pledge or otherwise dispose of any shares of capital stock of the Company or any securities convertible into or exchangeable or exercisable for or any other rights to purchase or acquire any shares of capital stock of the Company (or publicly announce its intention to do any of the foregoing) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any shares of capital stock of the Company, regardless of whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of shares of capital stock of the Company or such counsel may reasonably request other securities, in connection with each preliminary prospectuscash or otherwise, and regardless of whether such person or entity directly or beneficially currently owns or later acquires the Prospectus, the Registration Statement, the offer and sale shares of capital stock or other equity securities of the Shares hereunderCompany involved in such transaction, or proceedings at in each case for a period of 180 days after the Closing Datedate of the final Prospectus. If In case any of the conditions herein provided for specified in this Section 7 shall not have been fulfilled as of the date indicatedbe fulfilled, all obligations of the several Underwriters under this Agreement may be cancelled terminated by you by giving notice to the Representatives by notifying Company. Any such termination shall be without liability of the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf Underwriters and without liability of the Underwriters compliance with any conditions to the Company; provided, however, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Underwriters hereunderCompany under this Agreement, whether including all costs and expenses referred to in respect paragraph (g) of Section 6 hereof; and (ii) if this Agreement is terminated by you because of any refusal or failure on the part of the First Closing DateCompany to perform any of its obligations or agreements contained herein, an Additional Closing Date to fulfill any of the conditions herein, or otherwiseto comply with any provision hereof other than by reason of a default by the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the transactions contemplated hereby.
Appears in 1 contract
Sources: Underwriting Agreement (Alibris Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter hereunder are is subject to the following conditions:
(a) The Company shall have closed a debt financing with a minimum of $3 million in net proceeds on terms and conditions satisfactory to the Underwriter in its sole discretion.
(b) The Registration Statement shall have become remain effective under the Act andas of the date hereof and through the Closing Date and if applicable, at the Option Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Firm Shares or the Option Shares, as the case may be, shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(bc) At each the Closing Date and if applicable, the Option Closing Date, (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 such Closing Date or the Option Closing Date, as the case may be, and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date or the Option Closing Date, as the case may be; (ii) the Registration Statement, each preliminary prospectus Preliminary Prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus Preliminary Prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiariesSubsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus Preliminary Prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus Preliminary Prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each the Closing Date or the Option Closing Date, as the case may be, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date or the Option Closing Date, as the case may be, evidencing compliance with the provisions of this Subsection 5(b5(c), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(cd) No The Underwriter shall not have discovered and disclosed to the Company prior to any the Closing Date or if applicable, the Option Closing Date, as the case may be, that the Registration Statement, any preliminary prospectus Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives Underwriter is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(de) On each the Closing Date you and if applicable, the Option Closing Date, the Underwriter shall have received a the signed opinion, dated as of such date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles ▇▇▇▇▇▇, LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other UnderwritersUnderwriter.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the date of the Prospectus and the Closing Date, the Common Stock shall be listed on NYSE Amex and the NASDAQ Global Market, subject to official notice of issuanceCompany shall have obtained any approval from NYSE Amex as may be required by its rules and regulations.
(hg) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(jh) All proceedings taken at or prior to each the Closing Date or if applicable, the Option Closing Date, in connection with the sale of the Firm Shares or Option Shares, as the case may be, shall be reasonably satisfactory in form and substance to you the Underwriter and counsel to the several UnderwritersUnderwriter, and at the time of signing this Agreement and on the Closing Date or the Option Closing Date, you as the case may be, the Underwriter and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you the Underwriter and such counsel, as you the Underwriter or such counsel may reasonably request in connection with each preliminary prospectusPreliminary Prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date or the Option Closing Date, as the case may be. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters Underwriter under this Agreement may be cancelled by the Representatives Underwriter by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may Underwriter may, in their its sole discretion discretion, waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters Underwriter hereunder, whether in respect of the First Closing Date or the Option Closing Date, an Additional Closing Date or otherwiseas the case may be.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters to purchase and pay for the Shares which the Underwriters have agreed to purchase hereunder are subject to: the accuracy, as of the date hereof and as of the Closing Dates, of all of the representations and warranties of the Company and the Selling Security Holder contained in this Agreement; the Company's compliance with, or performance of, all of its covenants, undertakings and agreements contained in this Agreement that are required to be complied with or performed on or prior to each of the Closing Dates and to the following additional conditions:
(a) The Registration Statement shall have become effective under the Act and, at On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings proceeding for that purpose shall have been instituted before or be pending or, to the knowledge of the Company or the RepresentativesCompany, shall be contemplated threatened by the Commission; any request for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission; and neither the Registration Statement nor any state securities or “Blue Sky” commissioner or authorityamendment thereto shall have been filed to which counsel to the Underwriters shall have reasonably objected, in writing.
(b) At each The Representative shall not have disclosed in writing to the Company that the Registration Statement or Prospectus or any amendment or supplement thereto contained, as of the date thereof, an untrue statement of a fact which, in the opinion of counsel to 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 materially misleading.
(c) Between the date hereof and the Closing Date, (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 such Closing Date and the Company shall not have performed all sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(d) Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, licenses, permits, operations or financial condition or income of the obligations Company.
(e) Except as contemplated herein or as set forth in the Registration Statement and complied with all of Prospectus, during the conditions hereunder on its part period subsequent to be performed or complied with on or the Effective Date and prior to the Closing Date; , (iiA) the Company shall have conducted its business in the usual and ordinary manner as the same was being conducted on the date of the filing of the initial Registration Statement and (B) except in the ordinary course of its business, the Company shall not have incurred any material liabilities or obligations (direct or contingent), or disposed of any of its assets, or entered into any material transaction, and (C) the Company shall not have suffered or experienced any material adverse change in its business, affairs or in its condition, financial or otherwise. On the Closing Date, the capital stock and surplus accounts of the Company shall be substantially as great as at its last financial report without considering the proceeds from the sale of the Shares except to the extent that any decrease is disclosed in or contemplated by the Prospectus.
(f) The authorization of the Shares, the Registration Statement, each preliminary prospectus and the Prospectus and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Underwriters.
(g) The Company shall have furnished to the Representative the opinions, dated the Closing Date, and Additional Closing Date(s), addressed to you, of Bernstein & Wasserman, L▇▇, ▇▇▇▇▇el ▇▇▇ ▇▇▇ ▇ompany, that:
(i) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the Registration Statement and Prospectus; it has authorized and outstanding capital as set forth in the Registration Statement and Prospectus; and the Company is duly licensed or qualified as a foreign corporation in all jurisdictions in which the ownership or leasing of its properties requires such qualification or license, except where failure to be so qualified or licensed would have no material adverse effect on the business of the Company.
(ii) The Company has an authorized, issued and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Common Stock and Preferred Stock are duly authorized, validly issued, fully paid, and non-assessable, and do not have any amendments preemptive rights. The Company will have duly authorized, reserved and set aside shares of Common Stock issuable upon exercise of any outstanding options, warrants or supplements thereto shall stock option plans and when issued in accordance with the terms contained therein against payment therefor, will be duly and validly issued, fully paid and non-assessable.
(iii) The Common Stock and the Underwriters' Warrant conform to descriptions thereof under "Description of Securities" contained in the Prospectus.
(iv) The Underwriters will receive good and marketable title to the Shares purchased by them from the Company and the Selling Security Holder in accordance with the terms and provisions of this Agreement, to the best of such counsel's knowledge, free and clear of all liens, encumbrances, claims, security interests, restrictions, stockholders' agreements and voting trusts whatsoever.
(v) Except as set forth in the Prospectus, there are no outstanding options, warrants, or other rights, providing for the issuance of, and, to the best of the knowledge of such counsel, no commitments, plans or arrangements to issue, any shares of any class of capital stock of the Company, or any security convertible into, or exchangeable for, any shares of any class of capital stock of the Company.
(vi) To the best of such counsel's knowledge, no consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the valid authorization, issue or sale of the Shares hereunder, except such as may be required under the Act or state securities or Blue Sky Laws.
(vii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose have been instituted or are pending before or threatened by, the Commission;
(viii) To the best of such counsel's knowledge and based upon the investigation described below, the Registration Statement and Prospectus, and each amendment thereof and supplement thereto, comply as to form in all material respects conform to with the applicable requirements of the Act and the Rules and RegulationsRegulations (except that no opinion need be expressed as to financial statements, notes thereto, and neither financial data contained in the Registration Statement or Prospectus). Such counsel has participated in conferences with officers and representatives of the Company and with its certified public accountants in the preparation of the Registration Statement and the Prospectus. At such conferences counsel has made inquiries of such officers, representatives and accountants, and discussed the contents of the Registration Statement and the Prospectus. Such counsel has not independently verified, and, accordingly, does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement or the Prospectus, other than as set forth the Prospectus insofar as such statements relate to the contents of particular documents therein described. On the basis of the foregoing, nothing has come to the attention of such counsel to cause such counsel to believe that the Registration Statement, any preliminary prospectus or the Prospectus, Prospectus or any amendment or supplement thereto, shall contain thereto contains 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any a material fact required to be stated therein or necessary in order to make statements therein, in light of the statements therein circumstances under which they were made, not misleadingmisleading (except, in the case of both the Registration Statement and any amendment thereto and the Prospectus and any supplement thereto, for the financial statements, notes thereto and other financial and statistical data and schedules contained therein, as to which such counsel need express no opinion); and such counsel is familiar with all contracts referred to in the Registration Statement or in the Prospectus and such contracts are sufficiently summarized or disclosed therein, or filed as exhibits thereto, as required, and such counsel does not know of any other contracts required to be summarized or disclosed or filed; and such counsel does not know of any legal or governmental proceedings to which the Company is a party, or in which property of the Company is the subject, of a character required to be disclosed in the Registration Statement or the Prospectus which are not so disclosed therein.
(dix) On each Closing Date you shall The statements in the Registration Statement under the caption "Business" have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to been reviewed by such counsel such documents and insofar as they may have reasonably requested for the purpose refer to descriptions of enabling them to pass upon such mattersagreements, statutes, licenses, certifications, rules or regulations or legal conclusions, are correct in all material respects.
(ex) On each Closing Date you shall have received This Agreement has been duly authorized and executed by the signed opinionCompany and the Selling Security Holder and is a valid and binding agreement of the Company and the Selling Security Holder enforceable in accordance with its terms subject to bankruptcy, dated as of such dateinsolvency, of K&L Gates LLPreorganization, counsel moratorium and other laws affecting creditors rights generally and except that no opinion need be given with regard to the Company, in form reasonably satisfactory to counsel for enforceability of Section 9 hereof or the Underwriters, together with signed or photostatic copies thereof for each availability of the other Underwritersequitable relief.
(fxi) At To the time best knowledge of such counsel: (a) no default exists, and no event has occurred which, with notice or lapse of time, or both, would constitute a default in the due performance and observance of any material term, covenant or condition by the Company or the Selling Security Holder, of any indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company or the Selling Security Holder is a party or by which it or its business or its properties may be bound or affected, except where such default would not have a material adverse effect on the business of the signing of this Agreement Company and on each Closing Date, you shall have received a signed letter, dated, respectively, except as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed disclosed in the Prospectus; (b) the Selling Security Holder has full power and legal authority to sell the Selling Security Holder Shares to the Underwriters free and clear of all liens and encumbrances; (with executed copies for each of c) the Underwriters) Company has full power and lawful authority to authorize, issue and sell the Shares on the terms and conditions set forth herein and in the form heretofore approved by counsel Registration Statement and in the Prospectus; (d) no consent, approval, authorization or other order of any regulatory authority is required for such authorization, issue or sale, except as may be required under the Underwriters.
Act or State securities laws, clearance with the NASD and such other consent, approval, authorization or order as has been obtained and is in full force and effect; and (ge) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness execution and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date delivery of this Agreement, the Representatives shall have received an agreement substantially in consummation of the form of Annex A hereto signed by the persons listed on Schedule B heretotransactions herein contemplated, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale terms hereof will not conflict with, or constitute a default under, any material indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company and the Selling Security Holder is now a party or by which it or its business or its properties may be bound or affected, the Certificate of Incorporation and any amendments thereto, the by-laws of the Shares shall be reasonably satisfactory in form and substance to you and counsel to Company or the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunderSelling Security Holder, or proceedings at the Closing Date. If any order, rule or regulation, writ, injunction or decree of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicatedany government, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying governmental instrumentality, or court, domestic or foreign, having jurisdiction over the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date Selling Security Holder or otherwiseits business or properties.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholeSLC, from that set forth in SLC Receivables, the Servicer or [Name of Sub-Servicer] not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementUnderwriter, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as SLC, SLC Receivables, the Servicer or [Name of Sub-Servicer] by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or [Name of Sub-Servicer] (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriter and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriter, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Cadwalader, Wickersham & Taft and [__________], dated as of such datethe Closing Date, of in ▇▇▇▇ ▇▇▇ ▇ubs▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, e satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Sale Agreements, Servicing Agreement, Indenture, Trust Agreement, Auction Agency Agreement, Broker-Dealer Agreement, and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Cadwalader, datedWickersham & Taft, respectivelyin its capacity as counsel for the Company, as of each such date, from ▇▇ ▇▇▇▇ ▇▇d s▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCance satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this AgreementSLC to SLC Receivables, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel SLC Receivables to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Receivables I Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Nelnet Funding or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Servicer, from that set forth in the Seller or NLS not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementUnderwriters, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as the Servicer, the Seller or NLS by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, the Servicer, the Seller or NLS (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as of such date, an opinion addressed to you of ▇▇▇▇▇▇, ▇ ▇▇▇▇ LLP, in its capacity as counsel to the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the Purchase Agreement, the Servicing Agreement, the Indenture and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇ & Markiles ▇▇▇▇ LLP, in its capacity as counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably and substance satisfactory to counsel for the Underwritersyou and your counsel, together with signed or photostatic copies thereof for each of the concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel Seller to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Education Loan Funding Inc)
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are Underwriter to sell the Securities on a best efforts basis as provided herein shall be subject to the accuracy of the representations and warranties of the Company, to the performance by the Company of its obligations hereunder, and to the satisfaction of the following additional conditions:
(a) The Registration Statement shall have become effective under not later than 4:00 p.m. Minneapolis, Minnesota time on the Act anddate of this Agreement, at or such later date or time as shall be consented to in writing by the Closing Underwriter (the "Effective Date"), and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares thereof shall have been issued and no proceedings for that purpose shall have been instituted before initiated or, to the knowledge of the Company Company, or the RepresentativesUnderwriter, shall be contemplated threatened by the Commission or any state securities commission or “Blue Sky” commissioner similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or authoritythe Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriter and the Underwriter's counsel.
(b) At each Closing Date, (i) the representations and warranties of The Underwriter shall not have advised the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) that the Registration Statement, each preliminary prospectus and the Prospectus and any amendments Statement or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment thereof or supplement thereto, shall contain contains any untrue statement of a fact which is material fact or omit omits to state any a fact which is material fact and is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading; .
(iiic) Subsequent to the Effective Date and prior to termination of the offering, there shall not have beenoccurred any change, since or any development involving a prospective change, which materially and adversely affects the respective dates as of which information is given, no material adverse change in the Company's condition (financial or otherwise), businessearnings, operations, properties, business or business prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Statement or Prospectus, except changes and which, in the Underwriter's sole judgment, is material and adverse and that makes it, in the Registration Statement indicates might occur after Underwriter's sole judgment, impracticable or inadvisable to proceed with the effective date offering of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than Securities as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered Prospectus and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingthis Agreement.
(d) On each Closing Date you All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, and the registration, authorization, issue, sale and delivery of the Securities shall have been reasonably satisfactory to the Underwriter's counsel, and the Underwriter's counsel shall have been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the matters referred to in this Section.
(e) At the time of execution of this Agreement, the Underwriter shall have received from Boulay, Heutmaker, Zibell and Company, P.L.L.P. a signed letter dated the date of such execution, ▇▇ ▇orm and substance satisfactory to the Underwriter, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable published instructions, and the Rules and Regulations thereunder, and further stating in effect that in their opinion, dated the audited financial statements included in the Registration Statement and Prospectus covered by their report included therein comply as to form in all material respects with the applicable requirements of such datethe Securities Act, of ▇▇▇▇▇▇the published instructions and the Rule and Regulations.
(f) Leonard, Street and Deinard Professional Association shall have ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel ed to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form Underwriter a Blue Sky Memorandum reasonably satisfactory to counsel the Underwriter confirming that all requisite actions for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunderSecurities in all jurisdictions requested by the Underwriter have been taken.
(g) The Company shall have furnished to the Underwriter such additional certificates, documents and evidence as the Underwriter shall reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Underwriter and the Underwriter's counsel. All statements contained in any certificate, letter or other document delivered pursuant hereto by, or proceedings at on behalf of, the Closing DateCompany shall be deemed to constitute representations and warranties of the Company. The Underwriter may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions herein provided for specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the date indicatedUnderwriter, this Agreement and all obligations of the several Underwriters under this Agreement Underwriter hereunder may be cancelled canceled at, or at any time prior to, the Effective Date by the Representatives by notifying Underwriter. Any such cancellation shall be without liability of the Underwriter to the Company and shall not relieve the Company of its obligations under Article VII hereof. Notice of such cancellation on or prior shall be given to the applicable Closing Date. The Representatives may Company as specified in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseSection 8.03.
Appears in 1 contract
Sources: Distribution Agreement (American Church Mortgage Co)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter hereunder are subject to the accuracy when made and on each Delivery Date, of the representations and warranties of each of the Company and the Selling Shareholder contained herein, to the performance by the Company and the Selling Shareholder of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statement Prospectus shall have become effective under been timely filed with the Act and, at Commission in accordance with Section 6(a)(i); the Closing Date, Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the qualifications use of the Shares Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding or examination for that such purpose shall have been instituted before or, initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the knowledge use of the Company or form of the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityRegistration Statement.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No The Underwriter shall not have discovered and disclosed to the Company on or prior to any Closing such Delivery Date that the Registration Statement, any preliminary prospectus the Prospectus or the Prospectus Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact that which, in the reasonable opinion of Shearman & Sterling LLP, counsel to for the Representatives Underwriter, is material, material or omits to state any a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary in order to make the statements therein not misleading.
(dc) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Shares, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated herebyhereby shall be reasonably satisfactory in all material respects to counsel for the Underwriter and the Selling Shareholder, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) White & Case LLP shall have furnished to the Underwriter its written opinion, as counsel to the Company, addressed to the Underwriter and dated such Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-1.
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., General Counsel for the Company, shall have furnished to the Underwriter his written opinion addressed to the Underwriter, and dated such Delivery Date, in the form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-2.
(f) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of HGC Holdings LLC, shall have furnished to the Underwriter his written opinion, as counsel to HGC Holdings LLC and The Gas Company, LLC, addressed to the Underwriter and dated such Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-3.
(g) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter its written opinion, as counsel to the Selling Shareholder, addressed to the Underwriter and dated such Delivery Date, in form and substance reasonably satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit B-4.
(h) The Underwriter shall have received from Shearman & Sterling LLP, counsel for the Underwriter, such opinion or opinions, dated such Delivery Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they may have reasonably requested request for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(fi) At the time of the signing execution of this Agreement and on each Closing DateAgreement, you the Underwriter shall have received from KPMG LLP (i) a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCin form and substance satisfactory to the Underwriter, addressed to the Underwriters Underwriter and dated the date hereof (with executed copies for each x) confirming that they are independent public accountants within the meaning of the UnderwritersSecurities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (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 form heretofore approved by counsel for most recent Preliminary Prospectus, as of a date not more than three days prior to the Underwriters.
(g) As of the effective date of the Registration Statementhereof), the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice conclusions and findings of issuance.
(h) FINRA shall have confirmed that it has not raised any objection such firm with respect to the fairness financial information relating to the Company and reasonableness its consolidated subsidiaries and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings and (ii) a letter, in form and substance satisfactory to the Underwriter, addressed to the Underwriter and dated the date hereof (x) confirming that they are independent public accountants within the meaning of the underwriting terms Securities Act and arrangements for 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 most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information relating to IMTT and its consolidated subsidiaries and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) With respect to the letters of KPMG LLP referred to in the preceding paragraph (i) and delivered to the Underwriter concurrently with the execution of this offeringAgreement (the “initial letters”), the Company shall have furnished to the Underwriter letters (the “bring-down letters”) of such accountants, addressed to the Underwriter and dated such Delivery Date in each case (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of each bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of each bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters.
(k) The Company shall have furnished to the Underwriter a certificate, dated such Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that, to their knowledge, after reasonable investigation:
(i) At The representations, warranties and agreements of the Company in Section 1 are true and correct on and as of such Delivery Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) Subsequent to the dates of the most recent financial statements in the most recent Preliminary Prospectus and the Prospectus, there has been no material adverse change, nor any development involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, properties or business of the Company and its Subsidiaries, taken as a whole, other than those set forth in or contemplated by the most recent Preliminary Prospectus and the Prospectus.
(l) The Selling Shareholder shall have furnished to the Underwriter on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Shareholder stating that the representations, warranties and agreements of the Selling Shareholder contained herein are true and correct on and as of such Delivery Date and that the Selling Shareholder has complied with all its agreements contained herein and has satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date.
(m) Since the date of the last audited financial statements of the Company included in or incorporated by reference in the most recent Preliminary Prospectus, there has been no material adverse change, nor any development involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, properties or business of the Company and its Subsidiaries taken as a whole, other than those set forth in or contemplated by the most recent Preliminary Prospectus and the Prospectus, the effect of which, in any such case is, individually or in the aggregate, in the judgment of the Underwriter, 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 on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a 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, as to make it, in the judgment of the Underwriter impracticable or inadvisable to proceed with the public offering or delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Underwriter, impracticable or inadvisable to proceed with the public offering or delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) The New York Stock Exchange shall have approved the Shares for listing.
(p) The Lock-Up Agreements between the Underwriter and the persons set forth on Schedule 2, delivered to the Underwriter on or before the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing such Delivery Date.
(j) . All proceedings taken at opinions, letters, evidence and certificates mentioned above or prior elsewhere in this Agreement shall be deemed to each Closing Date be in connection compliance with the sale of the Shares shall be reasonably satisfactory provisions hereof only if they are in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, for the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseUnderwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Macquarie Infrastructure Corp)
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are Underwriter to purchase the Shares under this Agreement is subject to the satisfaction or waiver of each of the following conditions:
(a) All the representations and warranties of the Company, the Selling Stockholders and Berg ▇▇▇tained in this Agreement shall be true and correct on the Closing Date or the applicable Option Closing Date, as the case may be, with the same force and effect as if made on and as of the Closing Date or the applicable Option Closing Date, as the case may be.
(b) The Registration Statement shall have become effective not later than 5:00 P.M. (and in the case of any registration statement filed pursuant to Rule 462(b) under the Act andAct, not later than 10:00 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 Closing Date or the applicable Option Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted commenced or shall be pending before oror contemplated by the Commission.
(i) Since the date of the latest balance sheet included in the Registration Statement and the Prospectus, to there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the knowledge condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company, (ii) since the date of the latest balance sheet included in the Registration Statement and the Prospectus there shall not have been any change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (i) the representations and warranties of the Company contained from that set forth in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there the Company and its subsidiaries shall have beenno liability or obligation, since the respective dates as of direct or contingent, which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of to the Company and its subsidiaries, taken as a whole, from that set forth other than those reflected in the Registration Statement, each preliminary prospectus Statement and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and on the Prospectus, no action, suit Closing Date or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each applicable Option Closing Date, a certificate of as the principal executive officer and the principal financial or accounting officer of the Companycase may be, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a certificate dated the Closing Date, signed opinion, dated as of such date, of by Timo▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ Davi▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to their respective capacities as the several Underwriters, with respect to the sufficiency President and Chief Operating Officer and Senior Vice President and Chief Financial Officer of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, confirming the matters set forth in form reasonably satisfactory to counsel for the Underwritersparagraphs (a), together with signed or photostatic copies thereof for each of the other Underwriters.
(fb) At the time of the signing and (c) of this Agreement Section 9 and (v) on each the Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to certificate dated the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto Closing Date signed by the persons listed on Schedule B hereto, and Company as the attorney-in-fact for the Selling Stockholders (the "Attorney-in-Fact") in its capacity as such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Attorney-in-Fact,
Appears in 1 contract
Sources: Underwriting Agreement (Berg Electronics Corp /De/)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before instituted, threatened or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, which in the opinion of the Representative, would materially adversely affect the market for the Notes , (ii) any downgrading in the rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth or (iii) any event or development which makes any statement made in the Registration Statement, each preliminary prospectus and Disclosure Package or Prospectus untrue or which, in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth change in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company Disclosure Package or any of its Subsidiaries before or by any commission, board or administrative agency Prospectus in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, Disclosure Package or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes .
(c) You shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, or other counsel satisfactory to you, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Company Eligible Lender Trust Agreement, the Indenture, the Trust Agreement, and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning “true sale,” “non- consolidation” and “first perfected security interest” and certain other issues with respect to the transfer of the Trust Student Loans from the SLC to SLC Receivables, SLC Receivables to the Company and from the Company to the Indenture Trustee.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated as of the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Initial FWP and the Prospectus under the headings “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA Considerations”, to the extent such datestatements summarize the material tax consequences and the material consequences under ERISA, respectively, of the purchase, beneficial ownership and disposition of the Notes to holders thereof described therein, are correct in all material respects.
(e) You shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as Underwriters’ Counsel, dated the Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion and disclosure letters addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Registration Statement, the Disclosure Package and the Prospectus certain matters arising under the Trust Indenture Act and the ▇▇▇▇ ▇▇▇.
(h) You shall have received opinions addressed to you of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP or other counsel satisfactory to you in their capacity as counsel to SLC and SLC Receivables, each dated the Closing Date and satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPFinger, P.A., in its capacity as counsel to the several UnderwritersOwner Trustee, with respect dated the Closing Date and in form and substance satisfactory to the sufficiency of all corporate proceedings you and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersyour counsel.
(ej) On each Closing Date you You shall have received the signed opinionan opinion addressed to you of Thacher, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇ LLP, addressed in its capacity as counsel to the Underwriters (with executed copies for each of Indenture Trustee, dated the Underwriters) Closing Date and in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statementand substance satisfactory to you and your counsel, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.effect that:
(i) At The Indenture Trustee is a national banking association duly organized and validly existing under the date laws of this the United States.
(ii) The Indenture Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture and each Guarantee Agreement.
(iii) The execution and delivery of each of the Indenture and each Guarantee Agreement, and the Representatives performance by the Indenture Trustee of its obligations under the Indenture and each Guarantee Agreement, have been duly authorized by all necessary action of the Indenture Trustee and each has been duly executed and delivered by the Indenture Trustee.
(iv) The Indenture and each Guarantee Agreement constitute valid and binding obligations of the Indenture Trustee enforceable against the Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the Indenture and each Guarantee Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by the Indenture Trustee.
(vii) Neither the consummation by the Indenture Trustee of the transactions contemplated in the Indenture and each Guarantee Agreement nor the fulfillment of the terms thereof by the Indenture Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Indenture Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Indenture Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Indenture Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Indenture Trustee or any of its subsidiaries.
(viii) The Eligible Lender Trustee is an “eligible lender” for purposes of the FFELP Program in its capacity as Indenture Trustee with respect to Trust Student Loans held under the Indenture.
(k) You shall have received an agreement substantially opinion addressed to you of Thacher, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as counsel for the Eligible Lender Trustee and the Indenture Administrator, in form and substance satisfactory to you.
(l) [Intentionally Omitted]
(m) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of the Sub-Administrator in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Sub-Administrator contained in the Subadministration Agreement are true and correct in all material respects, that the Sub-Administrator has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding the Sub-Administrator is fair and accurate in all material respects, and (iii) since the date of the Time of Sale, except as may be disclosed in the Prospectus or the Disclosure Package, no Material Adverse Effect or any development involving a prospective Material Adverse Effect in, or affecting particularly the business or properties of the Sub-Administrator has occurred.
(n) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of SLC, SLC Receivables and the Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of SLC, SLC Receivables or the Servicer, as the case may be, contained in the respective SLC Sale Agreement, SLC Receivables Sale Agreement, the Servicing Agreement, the Subservicing Agreement, the Administration Agreement and the Subadministration Agreement, as applicable, are true and correct in all material respects, that each of SLC, SLC Receivables and the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding SLC, SLC Receivables or the Servicer, as applicable, is fair and accurate in all material respects, and (iii) since the first Time of Sale, no Material Adverse Effect or any development involving a prospective Material Adverse Effect, in or affecting particularly the business or properties of SLC, SLC Receivables or the Servicer, as applicable, has occurred.
(o) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of the Sub-Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Sub-Servicer contained in the Subservicing Agreement are true and correct in all material respects, that the Sub-Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding the Sub-Servicer is fair and accurate in all material respects, and (iii) since the date of the Time of Sale, except as may be disclosed in the Prospectus or the Disclosure Package, no Material Adverse Effect or any development involving a prospective Material Adverse Effect in, or affecting particularly the business or properties of the Sub-Servicer has occurred.
(p) You shall have received evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Trust Student Loans and the proceeds thereof to the Indenture Trustee.
(q) You shall have received a certificate addressed to you dated the Closing Date from a responsible officer acceptable to you of the Indenture Trustee in form and substance satisfactory to you and your counsel and to which shall be attached each Guarantee Agreement.
(r) The Underwriters shall have received on the Closing Date from KPMG LLP, accountants to the Company, a letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to (i) certain information regarding the Trust Student Loans and (ii) the static pool data and setting forth the results of Annex A hereto such specified procedures.
(s) All the representations and warranties of the Company contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriters shall have received a certificate, dated the Closing Date and signed by an executive officer of the persons listed on Schedule B hereto, Company to the effect set forth in this Section 8(s) and such in Section 8(t) hereof.
(t) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements shall herein contained and required to be in full force and effect on performed or complied with by it hereunder at or prior to the Closing Date.
(ju) All proceedings taken at The Underwriters shall have received by instrument dated the Closing Date, in lieu of or prior in addition to each the legal opinions referred to in this Section 8, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents.
(v) You shall have received certificates addressed to you dated the Closing Date of New York State Higher Education Services Corporation, California Student Aid Commission, American Student Assistance and United Student Aid Funds, Inc. (each, a “Significant Guarantor”) to the effect that (i) the information in the Prospectus and the Disclosure Package with respect to the applicable Significant Guarantor does not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements about the Significant Guarantor therein, in the light of the circumstances under which they are made, not misleading, and (ii) there are no proceedings pending or overtly threatened in writing against the Significant Guarantor in any court or before any governmental authority or arbitration board or tribunal, wherein an unfavorable decision, ruling or finding is likely and would materially adversely affect the performance by the Significant Guarantor to carry on its business substantially as now conducted.
(w) The Class A Notes shall be rated “AAA,” “AAA” and “Aaa,” respectively, by Fitch, Inc. (“Fitch”), Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and ▇▇▇▇▇’▇ Investors Service (“Moody’s”), the Class B Notes shall be rated “AA+,” “AA+” and “Aa1,” respectively, by Fitch, S&P and ▇▇▇▇▇’▇; and none of Fitch, S&P or Moody’s have placed the Notes under surveillance or review with possible negative implications.
(x) The issuance of the Notes shall not have resulted in a reduction or withdrawal by Fitch, S&P or Moody’s of their then current rating of any outstanding securities issued by the Company.
(y) You shall have received evidence satisfactory to you of the completion of all actions necessary to effect the transfer of the Trust Student Loans as described in the Prospectus and the Disclosure Package and the recordation thereof on SLC’s, SLC Receivables’ and the Sub-Servicer’s computer systems.
(z) You shall have received such further information, certificates and documents as the Representative may reasonably have requested, and all proceedings in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing transactions contemplated by this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.documents incid
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2007-2)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective accuracy of and compliance with the representations, warranties and covenants of the Company, PHEAA, and the Foundation contained herein, in each case as of the date of this Agreement and as of the Closing Date.
(b) The performance by the Company of its obligations to be performed hereunder or under the Indenture at or prior to the Closing.
(c) All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(bd) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part All actions required to be performed taken and all filings required to be made by the Foundation or complied with on or PHEAA under the Act prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements sale of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there Notes shall have been, since been duly taken or made.
(e) Since the respective dates as of which information is given, no material adverse change given in the condition Registration Statement (or any amendment or supplement thereto), except as may otherwise be stated therein or contemplated thereby, there shall not have occurred (i) any material change, or any development or event involving a prospective material change, in or affecting the financial or otherwise)condition, business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholePHEAA, from that set forth in the Foundation, or the Servicer not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as PHEAA, the Foundation, or the Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, PHEAA, the Foundation, or the Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes, or (iv) the enactment of legislation by the Congress of the United States, the publication of a decision by a court of the United States or the Tax Court of the United States, or the official publication of a ruling, regulation, proposed regulation or official statement by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or any other governmental agency with respect to federal taxation upon revenues or other income of the general character expected to be pledged under the Indenture or upon interest received on securities of the general character of the Notes, or which would have the effect of changing, directly or indirectly, the federal income tax consequences of interest on securities of the general character of the Notes in the hands of the holders thereof, which in the reasonable opinion of counsel to the Representative materially affects the market price of the Notes, or (v) the enactment of legislation by the State of Delaware or the Commonwealth of Pennsylvania, or the publication of a decision by a court of competent jurisdiction or any administrative tribunal of the State of Delaware or the Commonwealth of Pennsylvania or other governmental agency or department thereof, with respect to the taxation by the State of Delaware or the Commonwealth of Pennsylvania or any of their political subdivisions upon revenues or other income of the general character expected to be pledged under the Indenture, or which would have the effect of changing, directly or indirectly, the tax consequences under the State of Delaware or the Commonwealth of Pennsylvania tax law of interest on securities of the general character of the Notes in the hands of the holders thereof, which in the reasonable opinion of counsel to the Representatives materially affects the market price of the Notes.
(df) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of ▇▇▇▇▇▇▇ & ▇▇▇, P.C., or other counsel satisfactory to you, dated the Closing Date, in the form attached hereto as Exhibit A.
(g) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ & ▇▇▇, P.C. in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Prospectus under the headings "U.S. Federal Income Tax Considerations" and "ERISA Considerations", to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such datecounsel and are correct in all material respects.
(h) You shall have received an opinion addressed to you of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, in its capacity as Underwriter's Counsel, dated the Closing Date, in form and substance satisfactory to you.
(i) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ & ▇▇▇, P.C. in its capacity as counsel to PHEAA and the Foundation, dated the Closing Date in the Form of Exhibit B attached hereto.
(j) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPFinger, P. A., in its capacity as counsel to the several UnderwritersOwner Trustee, dated the Closing Date and in form and substance reasonably satisfactory to you and your counsel.
(k) You shall have received an opinion addressed to you from counsel to the Eligible Lender Trustee, dated the Closing Date and in form and substance reasonably satisfactory to you and your counsel.
(l) You shall have received an opinion addressed to you of counsel to the Trustee, dated the Closing Date and in form and substance reasonably satisfactory to you and your counsel, to the effect that:
(i) The Trustee is a corporation duly organized and validly existing under the laws of the State of New York.
(ii) The Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture, any Custodian Agreement and any Auction Agency Agreement.
(iii) The execution and delivery of each of the Indenture, any Custodian Agreements and any Auction Agency Agreement, and the performance by the Trustee of its obligations under the Indenture, any Custodian Agreements, and any Auction Agency Agreement, have been duly authorized by all necessary action of the Trustee and each has been duly executed and delivered by the Trustee.
(iv) The Indenture, any Custodian Agreements, and any Auction Agency Agreement constitute valid and binding obligations of the Trustee enforceable against the Trustee.
(v) The execution and delivery by the Trustee of the Indenture, any Custodian Agreement, and any Auction Agency Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States governmental authority.
(vi) Neither the consummation by the Trustee of the transactions contemplated in the Indenture, any Custodian Agreements, and any Auction Agency Agreement nor the fulfillment of the terms thereof by the Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Trustee or any of its subsidiaries.
(m) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of PHEAA, the Foundation and the Servicer in which such officers, without personal liability, shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of PHEAA, the Foundation or the Servicer, as the case may be, contained in the respective Sale Agreement and the Servicing Agreement, as applicable, are true and correct in all material respects, that each of PHEAA, the Foundation and the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and that the information therein regarding PHEAA, the Foundation or the Servicer, as applicable, does not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading , and (iii) since the date set forth in such certificate, except as may be disclosed in the Prospectus, no material adverse change in or affecting the business or properties of PHEAA, the Foundation or the Servicer, as applicable, has occurred.
(n) You shall have received evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of (i) the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Financed Student Loans and the proceeds thereof to the Trustee, and (ii) the Secretary of State of the Commonwealth of Pennsylvania reflecting the transfer of the Financed Student Loans from PHEAA to the Company and from the Company to the Foundation.
(o) The Underwriters shall have received on the Closing Date from KPMG LLP a letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the sufficiency Financed Student Loans and setting forth the results of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersspecified procedures (a "Comfort Letter").
(ep) On each All the representations and warranties of the Company contained in the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date you shall have received the signed opinion, dated as if made on and as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for Closing Date and the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you Underwriters shall have received a certificate, dated the Closing Date and signed letterby an executive officer of the Foundation, datedwithout personal liability, respectivelyto the effect set forth in this Section 6(p).
(q) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(r) The Underwriters shall have received by instrument dated the Closing Date (at the option of the Representative), as in lieu of each or in addition to the legal opinions referred to in this Section 6, the right to rely on opinions provided by such datecounsel and all other counsel under the terms of the Basic Documents.
(s) Fitch Ratings ("Fitch"), from ▇▇▇▇▇'▇ Investors Services, Inc. ("Moody's"), and Standard & Poor's Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ & Company Certified Public Accountants PCCompanies ("S&P"), addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to rated (1) the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this AgreementClass A Notes "AAA", the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto"Aaa", and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters"AAA", respectively, and rated the Class B Notes at the time of signing this Agreement least "A", "A2", and on the Closing Date"A", you respectively, and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section there shall not have been fulfilled as any announcement by any of the date indicatedFitch, all obligations Moody's or S&P that (i) it is downgrading any of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior its ratings assigned to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions Notes or (ii) it is reviewing its ratings assigned to the obligations of the Underwriters hereunderNotes with a view to possible downgrading, whether in respect of the First Closing Dateor with negative implications, an Additional Closing Date or otherwisedirection not determined.
Appears in 1 contract
Sources: Underwriting Agreement (Pheaa Student Loan Foundation Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy, on the date hereof and on the Delivery Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to the satisfaction of each of the following conditionsadditional conditions and agreements:
(a) The Registration Statement Prospectus, and any free writing prospectus that is required to be filed with the Commission pursuant to Rule 433(d) of the Securities Act, shall have become effective under been timely filed with the Act and, at the Closing Date, Commission in accordance with Section 5A(a) of this Agreement; no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted before or, to initiated or threatened by the knowledge Commission; and any request of the Company Commission for inclusion of additional information in the Registration Statement or the Representatives, Prospectus or otherwise shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityhave been complied with in all material respects.
(b) At each Closing Date, (i) the representations No Underwriter shall have discovered and warranties of disclosed to the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing date hereof or the Delivery Date; (ii) , that, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, any part of the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, Statement or any amendment or supplement thereto, shall contain any contained, as of its Effective Date or as of the Delivery Date, an untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial misleading or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date Time of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Sale Prospectus or the Prospectus or any amendment or supplement thereto, contains and will contain, as of the date hereof and the Delivery Date, an untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits and will omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus, the Transaction Agreements and the Securities, and all other legal matters relating to the offering, issuance and sale of the Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel to the Underwriters.
(d) On each Closing Date you ▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the Company, shall have received a signed furnished to the Underwriters its written opinion, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect that:
(i) Such counsel has been advised that the Registration Statement was declared effective under the Securities Act, and the Original Indenture was qualified under the Trust Indenture Act as of the time and date specified in such dateopinion; each of the Preliminary Prospectus, the free writing prospectus(es) identified in Item 1 of Schedule 2 and the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) and Rule 433 of the Securities Act, as the case may be, specified in such opinion on the date specified therein; and, based solely upon an oral acknowledgement by the staff of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission.
(ii) The Registration Statement and the Prospectus (excluding any documents incorporated by reference therein, as to which such counsel need express no opinion) and any further amendments or supplements thereto made by the Company prior to the Delivery Date (other than the financial statements and related notes and schedules and the other financial, statistical and accounting data included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion), when they were filed with the Commission appeared on their face to comply as to form in all material respects with the applicable requirements of the Securities Act, and the Indenture conforms in all material respects to the requirements of the Trust Indenture Act.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The Supplemental Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
(v) The Securities have been duly authorized for issuance by the Company and, when duly executed by the Company, authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered to the Underwriters, in exchange for payment therefor in accordance with the terms of the Agreement, such Securities constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits provided by the Indenture.
(vi) The statements made in the Time of Sale Prospectus and the Prospectus Supplement under the caption “Description of the notes” (including any statements referred to in the applicable paragraphs of the “Description of the Debt Securities” section of the base prospectus included in the Prospectus), insofar as such statements constitute summaries of the Indenture and the Securities, are accurate in all material respects (except for financial, statistical and accounting data included or incorporated by reference therein or omitted therefrom as to which such counsel need express no opinion). The Securities conform in all material respects to the description thereof in the Time of Sale Prospectus and the Prospectus.
(vii) The statements made in the Time of Sale Prospectus and the Prospectus under the caption “Material United States federal income tax consequences” insofar as such statements constitute summaries of United States federal income tax law and regulations or matters of law, are accurate in all material respects.
(viii) The execution and delivery by the Company of the Transaction Agreements, the issuance and sale of the Securities by the Company and the consummation by the Company of its obligations under the Transaction Agreements do not result in any violation by the Company of any provision of applicable U.S. Federal or Missouri State statute, rule or regulation that such counsel, based on its experience, recognizes as being applicable to the Company in a transaction of this type, or, to such counsel’s knowledge, any order, writ, judgment or decree of any Federal or Missouri State court or governmental authority or regulatory body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except in each case for such violations that would not be reasonably expected to result in a Material Adverse Effect.
(ix) No consent, approval, authorization or other action by, and no notice to or filing with, any U.S. Federal or Missouri State governmental authority or regulatory body, pursuant to any U.S. Federal or Missouri State statute, rule or regulation that such counsel, based on its experience, recognizes as being applicable to the Company in a transaction of this type, is required for the due execution, delivery and consummation by the Company of its obligations under the Transaction Agreements and the issuance and sale of the Securities by the Company, except such consents, approvals, authorizations or other actions which have been obtained or made or, with respect to a current report on Form 8-K and any free writing prospectus required to be filed with the Commission in connection with the issuance and sale of the Securities, will be made, or except as may be required under state securities or blue sky laws or the rules of the Financial Industry Regulatory Authority, Inc. in connection with the purchase and distribution of the Securities by the Underwriters, as to which such counsel need express no opinion. The opinions described in paragraph numbers (iv) and (v) above may be subject to the effect of applicable bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium, arrangement and assignment for the benefit of creditors laws, and other similar laws relating to or affecting the rights and remedies of creditors generally. The opinions may also be subject to the effect of general principles of equity, whether applied by a court of law or equity, including, but not limited to, principles (i) governing the availability of specific performance, injunctive relief or other equitable remedies, (ii) affording equitable defenses (e.g., waiver, laches and estoppel) against a party seeking enforcement, (iii) requiring good faith and fair dealing in the performance and enforcement of a contract by the party seeking its enforcement, (iv) requiring reasonableness in the performance and enforcement of an agreement by the party seeking its enforcement, (v) requiring consideration of the materiality of a breach or the consequences of the breach to the party seeking its enforcement, (vi) requiring consideration of the impracticability or impossibility of performance at the time of attempted enforcement and (vii) affording defenses based upon the unconscionability of the enforcing party’s conduct after the parties have entered into the contract. Such opinions may also be subject to the effect of generally applicable rules of law that (i) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange, and (ii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs. Such opinions may also be subject to the qualification that the enforceability of any indemnification or contribution provisions set forth in any documents or agreements referred to herein may be limited by federal or state securities laws or by public policy. In addition, the opinions of such counsel described in this paragraph (d) shall be rendered to the Underwriters at the request of the Company and shall so state therein. Such opinions may recite that no opinion is expressed with respect to, and that such counsel is not passing upon, and does not assume responsibility for (i) any matters concerning The Depository Trust Company, Euroclear Bank S.A. /NV, Clearstream Banking Société Anonyme or the policies, practices or procedures of any of them, or (ii) any matters relating to insurance laws, statutes, rules or regulations. In addition, such opinions may contain customary recitals, conditions and qualifications. In addition, such counsel shall state that, during the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus, it has participated in conferences with officers and other representatives of the Company, representatives of Deloitte & Touche, the Underwriters and their counsel, at which conferences the contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus and related matters were discussed, reviewed and revised. On the basis of the information which was developed in the course thereof, but without independent review or verification, although such counsel is not passing upon, and does not assume responsibility for, the accuracy, completeness or fairness of such statements contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus (except as indicated above), on the basis of the information which was developed in the course thereof, considered in light of such counsel’s understanding of applicable law and experience such counsel has gained through its practice thereunder, such counsel will advise the Underwriters that nothing has come to such counsel’s attention which causes such counsel to believe that:
1. any part of the Registration Statement, as of the Effective Date and as of the date hereof (except as to financial statements and related notes, financial, statistical and accounting data and supporting schedules included or incorporated by reference therein or omitted therefrom, as to which such counsel may express no belief), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading; or
2. the Time of Sale Prospectus, as of 3:30 p.m., New York City time, on the date hereof (which you have informed us was the approximate time of the pricing of the offering of the Securities) and, as amended or supplemented, if applicable, as of the Delivery Date, or the Prospectus, as of its date and as of the Delivery Date, except as aforesaid, contained or contains any untrue statement of a material fact or omitted or omits 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 were made, not misleading.
(e) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPEsq., counsel to Senior Vice President and Associate General Counsel of the several UnderwritersCompany, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed Underwriters his written opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of and dated the Delivery Date, in form and substance reasonably satisfactory to the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect substantially to the fairness and reasonableness of the underwriting terms and arrangements for this offering.effect that:
(i) At Each of the date of this Agreement, the Representatives shall have received an agreement substantially Company and its Significant Subsidiaries which is incorporated in the form United States has been duly incorporated and is validly existing as a corporation in good standing under the laws of Annex A hereto signed by its respective jurisdiction of incorporation, has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in each of the persons Time of Sale Prospectus and the Prospectus, and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction described in Schedule 5 in which the ownership, leasing and operation of its property and the conduct of its business requires such qualification (except where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect).
(ii) The entities listed on Schedule B hereto3 hereto are the only subsidiaries, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at direct or prior to each Closing Date in connection with the sale indirect, of the Shares shall be reasonably satisfactory Company. Except as otherwise set forth in form each of the Time of Sale Prospectus and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration StatementCompany owns, directly or indirectly through other subsidiaries, the offer and sale percentage indicated on Schedule 3 of the Shares hereunderoutstanding capital stock or other securities evidencing equity ownership of such subsidiaries, free and clear of any security interest and, to the knowledge of such counsel, any claim, lien, limitation on voting rights or encumbrance; and all of such securities have been duly authorized, validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights. There are no outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or proceedings at instruments convertible into or exchangeable for, any such shares of capital stock or other equity interest of such subsidiaries owned by the Closing Date. If Company.
(iii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Agreements and to consummate the transactions contemplated hereby and thereby, including, without limitation, the corporate power and authority to issue, sell and deliver the Securities as provided herein.
(iv) The Company had an authorized capitalization as of March 31, 2011, as set forth in the section headed “Capitalization” of each of the Time of Sale Prospectus and the Prospectus.
(v) To the knowledge of such counsel, neither the Company nor any of its Significant Subsidiaries which are incorporated in the conditions herein provided for United States is (i) in this Section shall not have been fulfilled as violation of its respective charter or bylaws, (ii) is in default in the date indicatedperformance of any obligation, all obligations agreement or condition contained in any material bond, debenture, note or any other evidence of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company indebtedness or in any other instrument, indenture, mortgage, deed of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.tr
Appears in 1 contract
Sources: Underwriting Agreement (Reinsurance Group of America Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter under this Agreement are subject, in the Underwriter's reasonable discretion, to the accuracy of and compliance with the representations and warranties and agreements of the Company herein as of the Effective Date and as of the Closing Dates, to the accuracy of the written statements of the Company made pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder are subject and to the following additional conditions:
(a) The Registration Statement shall have become effective under the Act and, at the On or prior to each Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any amendment or supplement thereto shall have been issued under the 1933 Act or any applicable state securities laws and no proceedings for that purpose shall have been instituted before or shall be pending, or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities authority. Any request on the part of the Commission or “Blue Sky” commissioner any state authority for additional information (to be included in the Registration Statement or authorityProspectus or otherwise) shall have been disclosed to the Underwriter and complied with to the satisfaction of the Underwriter and to the satisfaction of counsel for the Underwriter.
(b) At each Closing Date, (i) the representations and warranties of The Underwriter shall not have advised the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed writing at or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration StatementStatement or any post-effective amendment thereto, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that which, in the reasonable opinion Underwriter's opinion, is material or omits to state a fact which, in the Underwriter's opinion, is material and is required to be stated therein or is necessary to make statements therein (in the case of the Prospectus or any amendment or supplement thereto, in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the Shares, and the authorization and form of the Registration Statement and Prospectus, other than financial statements and other financial data, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to the Underwriter, and the Company and the Subsidiary shall have furnished to the Underwriter all documents and information relating thereto that they may reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Representatives Company, shall have furnished to the Underwriter its signed opinion, dated the Initial Closing Date, in form and substance reasonably satisfactory to the Underwriter as to the matters set forth in Exhibit C hereto.
(e) On or prior to the Initial Closing Date, the Underwriter shall have received from ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. letters, dated the date of this Agreement and the Initial Closing Date, respectively, in form and substance satisfactory to the Underwriter, confirming that they are independent public accountants with respect to the Company and the Subsidiary within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the financial statements of the Company and Subsidiary audited by them and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the American Institute of Certified Public Accountants as described in SAS No. 71, "Interim Financial Information," inquiries of officials of the Company or Subsidiary responsible for financial and accounting matters, and such other inquiries and procedures as may be specified in such letter, which procedures do not constitute an audit in accordance with U.S. generally accepted auditing standards, nothing came to their attention that caused them to believe that, if applicable, the unaudited interim financial statements of the Company or the Subsidiary, as the case may be, included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and 1933 Act Regulations or are not in conformity with U.S. generally accepted accounting principles applied on a basis substantially consistent, except as noted in the Registration Statement, with the basis for the audited financial statements of the Company or Subsidiary, as the case may be, included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an audit in accordance with U.S. generally accepted auditing standards, consisting of a reading of the unaudited interim financial statements and other information referred to below, a reading of the latest available unaudited financial statements of the Company and the Subsidiary, inspection of the minute books of the Company and the Subsidiary since the date of the latest audited financial statements of the Company and the Subsidiary included in the Registration Statement, inquiries of officials of the Company and the Subsidiary responsible for financial and accounting matters, and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that, as of a specified date not more than five days prior to the date of such letter, there have been any changes in the capital stock of the Company, or any payment or declaration of any dividend or other distribution on such capital stock, in each case as compared with amounts shown in the latest unaudited interim statement of financial condition of the Company included in the Registration Statement, except for changes, increases or decreases which the Registration Statement specifically discloses have occurred or may occur or which are described in such letter.
(f) At each Closing Date, the Underwriter shall have received certificates of the chief executive officer and the chief financial and accounting officer of the Company, which certificates shall be deemed to be made on behalf of the Company, dated as of such Closing Date, evidencing satisfaction of the conditions of Section 7(a) and stating that (i) the representations and warranties of the Company set forth in Section 2(a) hereof are accurate as of the Closing Date, and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date, (ii) since the respective dates as of which information is materialgiven in the Registration Statement and the Prospectus, there has not been any material adverse change in the condition (financial or otherwise), earnings, affairs, business, prospects or results of operations of the Company and the Subsidiary on a consolidated basis, (iii) since such dates there has not been any material transaction entered into by the Company or the Subsidiary other than transactions in the ordinary course of business, (iv) they have carefully examined the Registration Statement and the Prospectus as amended or supplemented and nothing has come to their attention that would lead them to believe that either the Registration Statement or the Prospectus, or any amendment or supplement thereto as of their respective effective or issue dates, contained, and the Prospectus as amended or supplemented at such Closing Date, contains any untrue statement of a material fact, or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and (v) covering such other matters as the Underwriter may reasonably request. The officers' certificate of the Company shall further state that no stop order affecting the Registration Statement is in effect or, to their knowledge, threatened.
(dg) On each Closing Date you The NASD, upon review of the terms of the public offering of the Shares, shall not have objected to the Underwriter's participation in such offering.
(h) The Underwriter shall have received a signed opinionon or before the Effective Date, dated as the agreements of such datethe executive officers, directors and five percent shareholders of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel the Company described in Section 4(i) hereof.
(i) Prior to the several UnderwritersInitial Closing Date and each additional Closing Date, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to the Underwriter all such counsel such documents other documents, certificates and opinions as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinionrequested. All opinions, dated as of such datecertificates, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the letters and other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements documents shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale of the Shares shall be provisions hereof only if they are reasonably satisfactory in form and substance to you the Underwriter. The Company shall furnish the Underwriter with conformed copies of such opinions, certificates, letters and counsel to other documents as the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel Underwriter shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Daterequest. If any of the conditions herein provided for referred to in this Section 7 shall not have been fulfilled when and as of the date indicatedrequired by this Agreement, all obligations of the several Underwriters under this Agreement may be cancelled terminated by the Representatives by notifying Underwriter on notice to the Company of such cancellation on at, or prior to the applicable at any time before, any Closing Date. The Representatives may in their sole discretion waive on behalf Any such termination shall be without liability of the Underwriters compliance with any conditions Underwriter to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseCompany.
Appears in 1 contract
Sources: Underwriting Agreement (Bright Technologies Com Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Sellers, from that set forth in the Servicer, UNIPAC or InTuition not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as a Seller, the Servicer, UNIPAC or InTuition by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, a Seller, the Servicer, UNIPAC or InTuition (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel to the Company, dated ▇▇▇ Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each of the Purchase Agreements, Servicing Agreement, Indenture and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel for the Company, in ▇▇▇▇ and substance satisfactory to you and your counsel, concerning "true sale," "non-consolidation" and "first perfected security interest" and certain other issues with respect to the transfer of the Financed Eligible Loans from the Sellers to the Company and from the Company to the Trustee.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Kutak Rock LLP, in its capacity as counsel for the Company, dated ▇▇▇ Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Prospectus under the headings "Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and are correct in all material respects.
(e) You shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel for the Company, dated ▇▇▇ Closing Date, in form and substance satisfactory to you and your counsel with respect to the character of such datethe Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of Stroock & Stroock & Lavan LLP, in its capacity as Underwriters' Counsel, dated t▇▇ ▇▇osing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion addressed to you of Ballard Spahr Andrews & Ingersoll LLP, in its capacity as counsel ▇▇▇ ▇▇▇ ▇▇▇▇▇▇y, ▇▇▇▇▇ ▇▇▇▇ & Markiles LLP, e Closing Date in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement Prospectus and the transactions contemplated herebyRegistration Statement and certain matters arising under the Trust Indenture Act of 1939, as amended, and the Investment Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose Act of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively1940, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuanceamended.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives You shall have received an agreement substantially opinions addressed to you of Perry, Guthery, Haase & Gessford, P.C. in their capacity as counsel to NELn▇▇ ▇nd ▇▇▇▇ ▇▇ the form of Annex A hereto signed by the persons listed on Schedule B heretoSellers, and such agreements shall be in full force and effect on each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of NELnet and each of the Sellers is a corporation in good standing under the laws of the State of Nevada; each having the full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under each of the Servicing Agreements, the Purchase Agreements and the Subservicing Agreements to which it is a party.
(ii) The Purchase Agreements have been duly authorized, executed and delivered by the respective Seller and the Servicing Agreement and the Subservicing Agreements have been duly authorized, executed and delivered by NELnet and each such agreement is the legal, valid and binding obligations of the respective Seller and NELnet, as the case may be, enforceable against each such Seller and NELnet, as the case may be, in accordance with their respective terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(iii) Neither the execution and delivery by NELnet of the Servicing Agreement or the Subservicing Agreements, or the execution by each Seller of the respective Purchase Agreement, nor the consummation by NELnet or each Seller of the transactions contemplated therein nor the fulfillment of the terms thereof by NELnet or each Seller will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the by-laws of NELnet or each Seller or of any indenture or other agreement or instrument to which NELnet or any Seller is a party or by which NELnet or any Seller is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to NELnet or any Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over NELnet or any Seller.
(iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry and reasonable investigation, threatened against NELnet or any Seller before or by any governmental authority that might materially and adversely affect the performance by NELnet or any Seller of its obligations under, or the validity or enforceability of, the Servicing Agreement, the Subservicing Agreements or the Purchase Agreements to which it is a party.
(v) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of NELnet contained in the Servicing Agreement, or the Subservicing Agreements or the representations and warranties of the Sellers contained in the Purchase Agreements are other than as stated therein.
(vi) No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required (a) for the due execution, delivery and performance by NELnet of the Servicing Agreement or the Subservicing Agreements, (b) for the due execution, delivery and performance by each Seller of the respective Purchase Agreement or (c) for the perfection of the Company's and the Trustee's interest in the Student Loans sold pursuant to the Purchase Agreements or the exercise by the Company (or its permitted assigns) and the Trustee of their rights and remedies under the Purchase Agreements, including specifically the filings of any Uniform Commercial Code financing statements, except for the execution and delivery of the Guarantee Agreements.
(vii) The Purchase Agreements together with the related bill of sale and blanket endorsement effects a valid sale to the Trustee of the Student Loans to be sold under the Purchase Agreements enforceable against creditors of, and purchasers from, the respective Seller.
(viii) As of the date specified in a schedule to such opinion, there were no (a) UCC financing statements naming a Seller as debtor or seller and covering any Student Loans to be sold under the related Purchase Agreement or interest therein or (b) notices of the filing of any federal tax lien (filed pursuant to Section 6323 of the Internal Revenue Code) or lien of the Pension Benefit Guaranty Corporation (filed pursuant to Section 4068 of ERISA) covering any Student Loan to be sold under the related Purchase Agreement or interest therein, listed in the available records in the respective offices set forth in such schedule opposite each such date (which are all of the offices that are prescribed under either the internal law of the conflict of law rules of the Nebraska UCC as the offices in which filings should be made to perfect security interests in Student Loans), except as set forth in such schedule.
(ix) As of the date of such opinion, by executing the Guarantee Agreements and upon execution and delivery of the instruments of transfer described in the Purchase Agreements and notification of the Guarantors and borrowers of the transfer contemplated thereby, and assuming that the Trustee is an eligible lender as that term is defined in 20 U.S.C. ss.1085(d)(1) of the Higher Education Act of 1965, as amended, the Trustee on behalf of the Company will be entitled to the benefit of the applicable Guarantor and/or Department of Education payments under the Act related to the Student Loans sold from time to time under the Purchase Agreements, subject to the terms and conditions of the Guarantee Agreements and the Act.
(i) You shall have received an opinion addressed to you of counsel to the several UnderwritersTrustee, dated the Closing Date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) The Trustee is a national banking association duly organized and validly existing under the laws of the United States of America.
(ii) The Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture, the Custodian Agreements and each Guarantee Agreement.
(iii) The execution and delivery of each of the Indenture, the Custodian Agreements and each Guarantee Agreement, and at the time performance by the Trustee of signing this its obligations under the Indenture, the Custodian Agreements and each Guarantee Agreement, have been duly authorized by all necessary action of the Trustee and each has been duly executed and delivered by the Trustee.
(iv) The Indenture, the Custodian Agreements and each Guarantee Agreement constitute valid and binding obligations of the Trustee enforceable against the Trustee.
(v) The execution and delivery by the Trustee of the Indenture, the Custodian Agreement and each Guarantee Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by the Trustee.
(vii) Neither the consummation by the Trustee of the transactions contemplated in the Indenture, the Custodian Agreements and each Guarantee Agreement nor the fulfillment of the terms thereof by the Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Trustee or any of its subsidiaries.
(viii) There are no actions, suits or proceedings pending or, to the best of such counsel's knowledge after due inquiry, threatened against the Trustee (as indenture trustee under the Indenture or in its individual capacity) before or by any governmental authority that might materially and adversely affect the performance by the Trustee of its obligations under, or the validity or enforceability of, the Indenture, the Custodian Agreements or any Guarantee Agreement.
(ix) The execution, delivery and performance by the Trustee of the Indenture, the Custodian Agreements or any Guarantee Agreement will not subject any of the property or assets of the Company or any portion thereof, to any lien created by or arising under the Indenture that is unrelated to the transactions contemplated in such agreements.
(x) The Trustee is an "eligible lender" for purposes of the FFELP Program in its capacity as trustee with respect to Financed Eligible Loans held under the Indenture.
(j) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of each Seller and the Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of such Seller or the Servicer, as the case may be, contained in the respective Purchase Agreement, the Servicing Agreement and the Subservicing Agreements, as applicable, are true and correct in all material respects, that each of such Seller and the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, you (ii) that they have reviewed the Prospectus and that the information therein regarding such counsel Seller or the Servicer, as applicable, is fair and accurate in all material respects, and (iii) since the date set forth in such certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change, in or affecting particularly the business or properties of such Seller or the Servicer, as applicable, has occurred.
(k) You shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory certificates addressed to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectusdated the Closing Date of any two of the Chairman of the Board, the ProspectusPresident, any Executive Vice President, Senior Vice President or Vice President, the Registration StatementTreasurer, any Assistant Treasurer, the offer principal financial officer or the principal accounting officer of UNIPAC and sale InTuition in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the Shares hereunderrepresentations and warranties of UNIPAC and InTuition contained in the Subservicing Agreements are true and correct in all material respects, that each of UNIPAC and InTuition has complied with all agreements and satisfied all conditions on its part to be performed or proceedings satisfied under such agreements at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional (ii) that they have reviewed the Prospectus and that the information therein regarding UNIPAC and InTuition is fair and accurate in all material respects, and (iii) since the date set forth in such certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change in, or affecting particularly the business or properties of UNIPAC and InTuition has occurred.
(l) You shall have received evidence satisfactory to you that, on or before the Closing Date or otherwise.Date, UC
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective under the Act and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “"Blue Sky” " commissioner or authorityauthority other than the state securities or "Blue Sky" commissioners or authorities set forth on Schedule 6(a).
(b) At each Closing Date, (i) the representations and warranties of the Company and the Selling Shareholders contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company and the Selling Shareholders shall have performed all of the obligations and complied with all of the conditions hereunder on its their part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or Statement nor the Prospectus, or Prospectus nor any amendment or supplement thereto, 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus Statement and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, or threatened against the Company or any of its Subsidiaries subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, or threatened against the Company or any of its Subsidiaries subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, (1) a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b)6(b) applicable to the Company, and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date, and (2) a certificate from each Selling Shareholder, dated as of such Closing Date, confirming the accuracy of the representations of such Selling Shareholder set forth in Section 2 hereof and confirming that all conditions set forth herein to be met by such Selling Shareholder have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles Godward LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company and the Selling Shareholders shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates Proskauer Rose LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters to the effect that:
(i) the Company is validly existing as a corporation in good standing under the laws of Delaware, has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus and, based solely on certificates from the appropriate state officials, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect;
(ii) each of Real Media, Inc. and 24/7 Search, Inc. (collectively, the "U.S. Subsidiaries") is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and, based solely on certificates from the appropriate state officials, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect;
(iii) the Shares to be sold by the Selling Shareholders have been duly authorized and are validly issued, fully paid and nonassessable;
(iv) the Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable, and the issuance of such Shares will not be subject to any preemptive rights arising from the Company's Certificate of Incorporation, as amended, or, to our knowledge, other rights to subscribe for the Shares;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of law known to such counsel to be applicable to the Company or any of its U.S. Subsidiaries or the certificate of incorporation or by-laws of the Company or any of its U.S. Subsidiaries or, to such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its U.S. Subsidiaries that is filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 2003, or, to such counsel's knowledge, any judgment, or decree of any governmental body, agency or court having jurisdiction over the Company or any of its U.S. Subsidiaries, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except for the registration of the Shares under the Act and such as may be required by the securities or "Blue Sky" laws of the various states in connection with the offer and sale of the Shares by the Underwriters (as to which such counsel expresses no opinion);
(vii) the description of the Company's capital stock contained in its Registration Statement on Form 8-A dated July 28, 1998, registering its Common Stock under Section 12(g) of the Exchange Act, insofar as such description constitutes a summary of the legal matters referred to therein, is accurate, and fairly presents the matters referred to therein, in all material respects;
(viii) to such counsel's knowledge, (A) no legal or governmental proceeding is pending or has been threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that is required to be described in the Registration Statement or the Prospectus and is not so described, (B) nor does there exist any statute, regulation, contract or other document that is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required;
(ix) the Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" or an entity "controlled by an investment company," as such terms are defined in the Investment Company Act of 1940, as amended;
(x) the Registration Statement and Prospectus (except for financial statements and schedules included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Act and the Rules and Regulations;
(xi) the certificates for the Shares comply with the provisions of Delaware law and have been duly approved by the Board of Directors of the Company;
(xii) to such counsel's knowledge, no person or entity has the right to require registration of shares of Common Stock or other securities of the Company in connection with the filing or effectiveness of the Registration Statement or otherwise, except for persons and entities who have expressly waived such right or who have been given proper notice and have failed to exercise such right within the time or times required under the terms and conditions of such right; and
(xiii) based solely upon the oral advice of the Commission, the Registration Statement has become effective under the Act and, based solely upon the oral advice of the Commission, no stop order proceedings suspending the effectiveness of the Registration Statement have been instituted or threatened or are pending by the Commission. Such counsel shall also have furnished to the Representatives a written statement, addressed to the Underwriters and dated the Closing Date, to the effect that in the course of the preparation of the Registration Statement and Prospectus, such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public or certified public accountants for the Company and with the Representatives and counsel for the Representatives, at which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (other than as expressly specified in paragraphs (ii) and (vii) above), on the basis of the foregoing, nothing has come to such counsel's attention which would lead such counsel to believe that (i) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel expresses no statement of belief as to the financial statements and schedules or other financial and statistical data derived therefrom, included or incorporated by reference therein) and (ii) the Prospectus, as of its date and as of the date of the opinion, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel expresses no statement of belief as to the financial statements and schedules or other financial and statistical data derived therefrom, included or incorporated by reference therein);
(f) On each Closing Date you shall have received the signed opinions, dated as of such date, of counsel to the Selling Shareholders, which counsel shall be reasonably acceptable to the Representatives, in form reasonably satisfactory to counsel to the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by or on behalf of each of the Selling Shareholders;
(ii) the execution and delivery by each Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement and Power of Attorney of such Selling Shareholder will not contravene any provision of law known to such counsel to be applicable to such Selling Shareholder or the certificate of incorporation or by-laws of such Selling Shareholder (if such Selling Shareholder is a corporation), or, to such counsel's knowledge, any agreement or other instrument binding upon such Selling Shareholder or, to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except for the registration of the Shares under the Act and such as may be required by the securities or "Blue Sky" laws of the various states in connection with the offer and sale of the Shares (as to which such counsel expresses no opinion);
(iii) each of the Selling Shareholders has the legal right, power and authority to enter into this Agreement, the Custody Agreement and Power of Attorney of such Selling Shareholder and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder;
(iv) each of the Custody Agreement and the Power of Attorney has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder; and
(v) upon payment and delivery of the Shares to be sold by each Selling Shareholder pursuant to this Agreement, (assuming that the Underwriters have no notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the "UCC") to the Shares or any security entitlement in respect thereof), (1) the Underwriters shall be a protected purchaser of the Shares within the meaning of Section 8-303 of the UCC, (2) under Section 8-501 of the UCC, the Underwriters will acquire a security entitlement in respect of such Shares and (3) no action based on an adverse claim (as defined in Section 8-102 of the UCC) to such security entitlement may be validly asserted.
(fg) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from each of ▇▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and KPMG LLP and addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by ▇▇▇▇▇▇ Godward LLP, counsel for the Underwriters.
(gh) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuanceNasdaq Small Cap Market System.
(hi) FINRA The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(ij) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Agree
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters hereunder under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its covenants and agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective under the Act andeffective, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued issued, and no proceedings for that purpose shall have been instituted before or threatened or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing Date, The Underwriters shall be satisfied that (i) the representations and warranties as of the Company contained Effective Date, the statements made in this Agreement shall be the Registration Statement and the Prospectus were true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or Statement nor the Prospectus, or any amendment or supplement thereto, shall contain any untrue statement of a material fact or omit Prospectus omitted to state any material a fact required to be stated therein or is necessary to make the statements therein not misleading; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment; (iii) there shall have been, since the respective dates as of which information is givengiven in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, no there has not been any material adverse change or any development involving a prospective material adverse change in the condition (financial or otherwise), business, prospects properties, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from that set forth transactions in the Registration Statementordinary course of business, each preliminary prospectus and the Prospectussince such dates, except changes that in the Registration Statement indicates might occur after the effective date ordinary course of the Registration Statementbusiness, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or subsidiaries has entered into any material transaction, contract or agreement transaction not in the ordinary course of business other than as referred to or contemplated in the Registration StatementStatement in the form in which it originally became effective and the Prospectus contained therein; and (iv) except as set forth neither the Company nor any of its subsidiaries has any material contingent obligations that are not disclosed in each preliminary prospectus the Registration Statement and the Prospectus, ; (v) there are no action, suit or proceeding at law or in equity shall be pending or, to the Company’ 's knowledge, threatened against legal proceedings to which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against subsidiaries is a party or of which property of the Company or any of its Subsidiaries before or by any commission, board or administrative agency subsidiaries is subject that are material and that are not disclosed in the United States Registration Statement and the Prospectus; (vi) there are not any franchises, contracts, leases or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably other documents that are required to be expected, individually or in filed as exhibits to the aggregate, to result in a Material Adverse EffectRegistration Statement that have not been filed as required; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of (vii) the representations and warranties of the Company set forth herein are true and correct in Section 1 hereof and confirming that all conditions set forth herein material respects as of the Closing Date or any later date on which Option Stock is to be met by purchased, as the Company have been met as of such datecase may be.
(c) No Underwriter shall have discovered and disclosed On or prior to the Company prior to any Closing Date that Date, the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters relating incident to this Agreement and the transactions contemplated herebyforegoing, and the Company form of the Registration Statement and of the Prospectus (except as to the financial statements contained therein), shall have furnished been approved at or prior to the Closing Date by Mor▇▇▇▇▇ & Foe▇▇▇▇▇ ▇▇P, counsel for the Underwriters. The Underwriters shall have received from counsel to the Underwriters such opinion or opinions with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other information as they may have reasonably requested for the purpose of enabling request to enable them to pass upon such matters.
(ed) On each the Closing Date you Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the signed opinionUnderwriters, dated as the Closing Date or, if related to the later sale of Option Stock, such later date, of K&L Gates LLPBass, Ber▇▇ & Sim▇ ▇▇C, counsel to the Company, to the effect set forth in form reasonably satisfactory Exhibit A hereto. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel for the Underwritersdeems proper, together with signed or photostatic copies thereof for each on certificates of responsible officers of the other UnderwritersCompany and public officials. References to the Registration Statement and the Prospectus in this paragraph (d) shall include any amendment or supplement thereto at the date of such opinion.
(e) You shall have received from Deloitte & Touche LLP a letter addressed to the Underwriters and dated the Closing Date and any later date on which Option Stock is purchased, confirming that Deloitte & Touche LLP are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder and based upon the procedures described in their letter delivered to the Underwriters concurrently with the execution of this Agreement (the "Original Letter"), but carried out to a date not more than three business days prior to the Closing Date or such later date on which Option Stock is purchased (i) confirming, to the extent true, that the statements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later date, as the case may be; and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter that are necessary to reflect any changes in the facts described in the Original Letter since the date of the Original Letter or to reflect the availability of more recent financial statements, data or information. The letters shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company or any of its subsidiaries, which in your sole judgment, makes it impractical or inadvisable to proceed with the public offering of the Shares or the purchase of the Option Stock as contemplated by the Prospectus.
(f) At the time You shall have received from Deloitte & Touche LLP a letter stating that their review of the signing Company's internal accounting controls, to the extent they deemed necessary in establishing the scope of this Agreement their examination of the Company's financial statements as of June 30, 1999 and 2000, did not disclose any weakness in internal controls that they considered to be material weaknesses.
(g) On the Closing Date, and on each Closing Dateany later date on which Option Stock is purchased, you shall have received a signed lettercertificate, dated, respectivelydated the Closing Date or such later date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of each the Company stating that the respective signers of said certificate have carefully examined the Registration Statement in the form in which it originally became effective and the Prospectus contained therein and any amendments or supplements thereto and this Agreement, and that the statements included in paragraph (b) of this Section 7 are true and correct.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such datefurther information, certificates and documents as the Representatives may reasonably request.
(i) You shall have been furnished evidence in usual written or electronic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to you, of the qualification referred to in paragraph (f) of Section 6 hereof.
(j) Prior to the Closing Date, the Shares shall have been duly authorized for inclusion on the Nasdaq National Market upon official notice of issuance.
(k) On or prior to the Closing Date, the Underwriters shall have received from all directors and executive officers agreements, reasonably satisfactory to W.R. ▇▇▇▇▇▇▇▇▇ & + Co, LLC, stating that such person or entity will not, without the prior written consent of W.R. ▇▇▇▇▇▇▇▇▇ + Co, LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by such person or entity or any affiliate of such person or entity or any person in privity with such person or entity or any affiliate of such person or entity) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 180 days after the Closing Date. In case any of the conditions specified in this Section 7 shall not be fulfilled, this Agreement may be terminated by you by giving notice to the Company. Any such termination shall be without liability of the Company Certified Public Accountants PC, addressed to the Underwriters and without liability of the Underwriters to the Company; provided, however, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Company under this Agreement, including all costs and expenses referred to in paragraph (g) of Section 6 hereof; and (ii) if this Agreement is terminated by you because of any refusal or failure on the part of the Company to perform any agreement herein, to fulfill any of the conditions herein, or to comply with executed copies for each any provision hereof other than by reason of a default by any of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on Company will reimburse the NASDAQ Global Market, subject to official notice Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of issuance.
(hcounsel) FINRA that shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed been incurred by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date them in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisetransactions contemplated hereby.
Appears in 1 contract
Sources: Underwriting Agreement (Beacon Education Management Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase the Shares on the Closing Date or the Additional Closing Date, as the case may be, are subject to the performance by the Company and the Selling Shareholder of their obligations hereunder and to the following additional conditions:
(a) The the Registration Statement shall have become effective (or if a post-effective amendment is required to be filed under the Act andSecurities Act, at such post-effective amendment shall have become effective) not later than 5:00 P.M., New York City time, on the Closing Date, date hereof; and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any post-effective amendment shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission; the Prospectus shall have been instituted before or, filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 4(a) hereof; and all requests for additional information shall have been complied with to the knowledge satisfaction of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.;
(b) At each Closing Date, (i) the representations and warranties of the Company and the Selling Shareholder contained in this Agreement herein shall be true and correct with on and as of the same effect Closing Date or the Additional Closing Date, as the case may be, as if made on and as of such the Closing Date or the Additional Closing Date, as the case may be, and the Company and the Selling Shareholder shall have performed all of the obligations and complied with all of the agreements and all conditions hereunder on its their part to be performed or complied with on satisfied hereunder at or prior to the Closing Date or the Additional Closing Date, as the case may be;
(c) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, consolidated financial position, results of operations, cash flows or stockholders’ equity of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated in the Prospectus; and neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any 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 Prospectus;
(d) the Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, a certificate of an executive officer of the Company, with specific knowledge about the Company’s financial matters, satisfactory to the Representatives to the effect set forth in paragraphs (a), (b) and (c) of this Section 6, and (with respect to the respective representations, warranties, agreements and conditions of the Company) to the further effect that there has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its Subsidiaries taken as a whole from that set forth or contemplated in the Registration Statement;
(e) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Company, shall have furnished to the Representatives their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Representatives, to the effect that:
(i) other than as set forth or contemplated in the Prospectus and insofar as matters of United States federal and New York state law are concerned, to the best of such counsel’s knowledge, there are no legal or governmental investigations, actions, suits or proceedings pending or threatened against or affecting the Company or any of its Subsidiaries or any of their respective properties or to which the Company or any of its Subsidiaries is or may be a party or to which any property of the Company or its Subsidiaries is or may be the subject which, if determined adversely to the Company or any of its Subsidiaries, could individually or in the aggregate have, or reasonably be expected to have, a material adverse effect on the financial position or results of operations of the Company and its Subsidiaries taken as a whole; and such counsel does not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(ii) to the extent governed by the laws of the State of New York, this Agreement has been duly executed and delivered by the Company;
(iii) under the laws of the State of New York relating to personal jurisdiction, the Company has, pursuant to Section 13 of this Agreement, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a “New York Court”) in any action arising out of or relating to this Agreement or the transactions contemplated hereby, has validly and irrevocably waived any objection to the venue of a proceeding in any such court, and has validly and irrevocably appointed the Authorized Agent (as defined herein) as its authorized agent for the purpose described in Section 13 hereof; and service of process effected on such agent in the manner set forth in Section 13 hereof will be effective to confer valid personal jurisdiction over the Company;
(iv) the statements in the Prospectus under “Management,” “Description of Capital Stock” and “Service of Process and Enforcement of Liabilities,” and in the Registration Statement in Items 6 and 7, insofar as such statements constitute a summary of the terms of legal matters, documents or proceedings referred to therein, and the statements in the Prospectus under “Tax Considerations – United States Federal Income Tax Considerations” insofar as such statements describe United States federal income tax law, fairly summarize the information called for with respect to such terms, legal matters, documents, proceedings or descriptions;
(v) the issue and sale of the Shares being delivered on the Closing Date or the Additional Closing Date, as the case may be, and the performance by the Company of its obligations under this Agreement and the consummation of the transactions contemplated herein will not result in a material breach of any of the terms or provisions of, or constitute a default under, any agreement or instrument, known to such counsel, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject;
(vi) no consent, approval, authorization, order, license, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications (A) as have been obtained under the Securities Act and the Exchange Act and as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters or such as may be required by the NASD, and (B) as may be required in connection with the acquisition of any vessel as contemplated in the Prospectus; and
(vii) the Company is not and, after giving effect to the offering and sale of the Shares, will not be an “investment company” or entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act. In rendering such opinions, such counsel may (A) limit its opinions to matters involving the application of laws of the United States and the State of New York and (B) rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company. The opinion of such counsel for the Company shall state that the opinion of any such other counsel upon which they relied is in form satisfactory to such counsel and, in such counsel’s opinion, the Underwriters and they are justified in relying thereon. The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP described above shall be rendered to the Underwriters at the request of the Company and shall so state therein. Such counsel shall also state that, although they do not assume any responsibility for, and shall not be deemed to have independently ascertained or verified, the accuracy, completeness or fairness of the statements made in the Registration Statement or the Prospectus, except to the extent required by subsection (iv) of this Section 6(e), nothing has come to their attention in the course of participating with officers and representatives of the Company in the preparation of the Registration Statement that would lead them to believe that, insofar as relevant to the offering of the Shares, that (other than the financial statements and related schedules and other financial and other statistical data contained therein, as to which such counsel need make no statement) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements as of the Act and the Rules and Regulationsits effective date, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement theretoas of its date and as of the Closing Date, shall contain contained any untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statementas amended or supplemented, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement theretoif applicable, contains an any untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(df) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ & Markiles LLPIslands counsel for the Company, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed Representatives their written opinion, dated the Closing Date or the Additional Closing Date, as of such date, of K&L Gates LLP, counsel to the Companycase may be, in form reasonably and substance satisfactory to counsel for the UnderwritersRepresentatives, together with signed or photostatic copies thereof for to the effect that:
(i) each of the other Underwriters.
(f) At Company and each of its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the time laws of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Islands with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) the authorized capital stock of the Company Certified Public Accountants PC, addressed conforms as to legal matters to the Underwriters description thereof contained in the Prospectus;
(with executed copies for each iii) all issued and outstanding shares of the Underwriters) in the form heretofore approved by counsel for the Underwriters.Company have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to any preemptive rights;
(giv) As of the effective date of Shares to be issued and sold by the Registration StatementCompany hereunder have been duly authorized, and when delivered to and paid for by the Common Stock shall be listed on Underwriters in accordance with the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, will be validly issued, fully paid and non-assessable and the Representatives shall have received an agreement substantially issuance of the Shares is not subject to any preemptive rights;
(v) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of the ▇▇▇▇▇▇▇▇ Islands, is required for the execution and delivery by the Company of this Agreement in order for it to be duly and validly authorized;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) other than as set forth or contemplated in the form Prospectus and insofar as matters of Annex A hereto signed the ▇▇▇▇▇▇▇▇ Islands law are concerned, to the best of such counsel’s knowledge, there are no legal or governmental investigations, actions, suits or proceedings pending or threatened in the ▇▇▇▇▇▇▇▇ Islands against or affecting the Company or any of its properties or to which the Company is or may be a party or to which any property of the Company is or may be the subject;
(viii) the compliance by the persons listed on Schedule B heretoCompany with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not result in any violation of the provisions of the Articles of Incorporation or By-laws of the Company or any ▇▇▇▇▇▇▇▇ Islands statute or any order, rule or regulation known to such counsel of any court or governmental agency or body in the ▇▇▇▇▇▇▇▇ Islands having jurisdiction over the Company or any of its properties;
(ix) the Company owns, possesses or has obtained all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all governmental authorities and all courts and other tribunals, in the ▇▇▇▇▇▇▇▇ Islands, necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as conducted as of the date hereof (other than such agreements shall be licenses, permits, certificates, consents, orders, approvals and other authorizations the failure to obtain would not in the aggregate have a material adverse effect on the Company);
(x) no consent, approval, authorization, order, license, registration or qualification of or with any court or governmental agency or body is required in the ▇▇▇▇▇▇▇▇ Islands for the issue and sale of the Shares by the Company or the consummation by the Company of the transactions contemplated by this Agreement, except (A) which have been duly obtained and are in full force and effect on or (B) as may be required in connection with the Closing Date.acquisition of any vessel as contemplated in the Prospectus and the registration of any such vessel under the law and Flag of the ▇▇▇▇▇▇▇▇ Islands;
(jxi) All the statements in the Prospectus under “Dividend Policy”, “Description of Capital Stock” and “Certain ▇▇▇▇▇▇▇▇ Islands Company Considerations,” insofar as such statements constitute a summary of the terms of the capital stock of the Company, ▇▇▇▇▇▇▇▇ Islands legal matters, documents or proceedings taken at referred to therein, and the statements in the Prospectus under “Tax Considerations—▇▇▇▇▇▇▇▇ Islands Tax Considerations,” insofar as such statements describe ▇▇▇▇▇▇▇▇ Islands tax law, fairly present in all material respects the information called for with respect to such terms, legal matters under ▇▇▇▇▇▇▇▇ Islands law, documents or prior proceedings;
(xii) no stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Underwriters to each Closing Date the ▇▇▇▇▇▇▇▇ Islands or to any political subdivision or taxing authority thereof or therein in connection with the sale and delivery by the Company of the Shares shall be reasonably satisfactory in form and substance to you and counsel to or for the several respective accounts of the Underwriters, and at the time ;
(xiii) insofar as matters of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus▇▇▇▇▇▇▇▇ Islands law are concerned, the Registration Statement, Statement and the offer and sale filing of the Shares hereunder, or proceedings at Registration Statement with the Closing Date. If any of the conditions herein provided for in this Section shall not Commission have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled duly authorized by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive and on behalf of the Underwriters compliance with any conditions Company; and the Registration Statement has been duly executed pursuant to the obligations such authorization by and on behalf of the Underwriters hereunderCompany;
(xiv) a final non-appealable judgement against the Company entered by a court in any United States or foreign jurisdiction in any suit, whether action or proceeding would be enforceable in respect the courts of the First Closing Date▇▇▇▇▇▇▇▇ Islands; without a retrial of the merits of the mater, an Additional Closing Date provided that:
(a) the judgment was for a sum of money and was final in the jurisdiction granting the judgement;
(b) the court granting the judgment had jurisdiction under the laws of the place where it sat and the judgement did not offend principles of the ▇▇▇▇▇▇▇▇ Islands as to due process, propriety or otherwise.public order; and
(c) the
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Sellers, from that set forth in the Servicer, UNIPAC or InTuition not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as a Seller, the Servicer, UNIPAC or InTuition by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, a Seller, the Servicer, UNIPAC or InTuition (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as of such date, an opinion addressed to you of ▇▇▇▇▇▇, ▇ ▇▇▇▇ LLP, in its capacity as counsel to the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each of the Purchase Agreements, Servicing Agreement, Indenture and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇ & Markiles ▇▇▇▇ LLP, in its capacity as counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably and substance satisfactory to counsel for the Underwritersyou and your counsel, together with signed or photostatic copies thereof for each of the concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel Sellers to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Student Loan Corp- 2)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Sellers, from that set forth in the Servicer, UNIPAC or InTuition not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as a Seller, the Servicer, UNIPAC or InTuition by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, a Seller, the Servicer, UNIPAC or InTuition (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Kutak Rock LLP, dated in its capacity as of such datecounsel to the Company, of d▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇ & Markiles LLPDate, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Purchase Agreements, Servicing Agreement, Indenture, Auction Agency Agreement, Broker-Dealer Agreements and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Kutak Rock LLP, datedin its capacity as counsel for the Company, respectively, as of each such date, from ▇▇▇▇▇ ▇▇▇▇ & Company Certified Public Accountants PC▇▇▇ substance satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel Sellers to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters to purchase and pay for the Units which the Underwriters have agreed to purchase hereunder are subject to to: the following conditions:
(a) The Registration Statement shall have become effective under accuracy, as of the Act and, at date hereof and as of the Closing DateDates, no stop order suspending the effectiveness of the Registration Statement or the qualifications all of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (i) the representations and warranties of the Company contained in this Agreement shall be true and correct with Agreement; the same effect as if made on and as of such Closing Date and the Company shall have performed Company's compliance with, or performance of, all of the obligations its covenants, undertakings and agreements contained in this Agreement that are required to be complied with all or performed on or prior to each of the conditions hereunder on its part Closing Dates and to be performed or complied with on the following additional conditions:
(a) On or prior to the Closing Date, no order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or be pending or, to the knowledge of the Company, shall be threatened by the Commission; any request for additional information on the part of the Commission (iito be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission; and neither the Registration Statement nor any amendment thereto shall have been filed to which counsel to the Underwriters shall have reasonably objected, in writing.
(b) The Representative shall not have disclosed in writing to the Company that the Registration Statement or Prospectus or any amendment or supplement thereto contained, as of the date thereof, an untrue statement of a fact which, in the opinion of counsel to 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 materially misleading.
(c) Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(d) Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, licenses, permits, operations or financial condition or income of the Company.
(e) Except as contemplated herein or as set forth in the Registration Statement and Prospectus, during the period subsequent to the Effective Date and prior to the Closing Date, (A) the Company shall have conducted its business in the usual and ordinary manner as the same was being conducted on the date of the filing of the initial Registration Statement and (B) except in the ordinary course of its business, the Company shall not have incurred any material liabilities or obligations (direct or contingent), or disposed of any of its assets, or entered into any material transaction, and (C) the Company shall not have suffered or experienced any material adverse change in its business, affairs or in its condition, financial or otherwise. On the Closing Date, the capital stock and surplus accounts of the Company shall be substantially as great as at its last financial report without considering the proceeds from the sale of the Units except to the extent that any decrease is disclosed in or contemplated by the Prospectus.
(f) The authorization of the Units, the Common Stock and the Warrants, the Registration Statement, each preliminary prospectus and the Prospectus and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Underwriters.
(g) The Company shall have furnished to the Representative the opinions, dated the Closing Date, and Additional Closing Date(s), addressed to you, of Gravel and ▇▇▇▇ counsel for the Company, that:
(i) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the Registration Statement and Prospectus; it has authorized and outstanding capital as set forth in the Registration Statement and Prospectus; and the Company is duly licensed or qualified as a foreign corporation in all jurisdictions in which the ownership or leasing of its properties requires such qualification or license, except where failure to be so qualified or licensed would have no material adverse effect on the business of the Company.
(ii) All of the outstanding shares of Common Stock are duly authorized, validly issued, fully paid, and non-assessable, and do not have any amendments preemptive rights. The Company will have duly authorized, reserved and set aside shares of Common Stock issuable upon exercise of the Warrants and any other outstanding options, warrants or supplements thereto shall stock option plans and when issued in accordance with the terms contained therein against payment therefor, will be duly and validly issued, fully paid and non-assessable.
(iii) The Common Stock, Warrants and the Underwriter's Unit Warrant conform to descriptions thereof under "Description of Securities" contained in the Prospectus.
(iv) The Underwriters will receive good and marketable title to the Units purchased by them from the Company in accordance with the terms and provisions of this Agreement, to the best of such counsel's knowledge, free and clear of all liens, encumbrances, claims, security interests, restrictions, stockholders' agreements and voting trusts whatsoever.
(v) Except as set forth in the Prospectus, there are no outstanding options, warrants, or other rights, providing for the issuance of, and, to the best of the knowledge of such counsel, no commitments, plans or arrangements to issue, any shares of any class of capital stock of the Company, or any security convertible into, or exchangeable for, any shares of any class of capital stock of the Company.
(vi) To the best of such counsel's knowledge, no consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the valid authorization, issue or sale of the Units hereunder, except such as may be required under the Act or state securities or Blue Sky Laws.
(vii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose have been instituted or are pending before or threatened by, the Commission;
(viii) To the best of such counsel's knowledge and based upon the investigation described below, the Registration Statement and Prospectus, and each amendment thereof and supplement thereto, comply as to form in all material respects conform to with the applicable requirements of the Act and the Rules and RegulationsRegulations (except that no opinion need be expressed as to financial statements, notes thereto, and neither financial data contained in the Registration Statement or Prospectus). Such counsel has participated in conferences with officers and representatives of the Company and with its certified public accountants in the preparation of the Registration Statement and the Prospectus. At such conferences counsel has made inquiries of such officers, representatives and accountants, and discussed the contents of the Registration Statement and the Prospectus. Such counsel has not independently verified, and, accordingly, does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement or the Prospectus, other than as set forth the Prospectus insofar as such statements relate to the contents of particular documents therein described. On the basis of the foregoing, nothing has come to the attention of such counsel to cause such counsel to believe that the Registration Statement, any preliminary prospectus or the Prospectus, Prospectus or any amendment or supplement thereto, shall contain thereto contains any untrue statement of a material fact or omit omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the case of both the Registration Statement and any amendment thereto and the Prospectus and any supplement thereto, for the financial statements, notes thereto and other financial and statistical data and schedules contained therein, as to which such counsel need express no opinion); and such counsel is familiar with all contracts referred to in the Registration Statement or in the Prospectus and such contracts are sufficiently summarized or disclosed therein, or filed as exhibits thereto, as required, and such counsel does not know of any other contracts required to be summarized or disclosed or filed; and such counsel does not know of any legal or governmental proceedings to which the Company is a party, or in which property of the Company is the subject, of a character required to be disclosed in the Registration Statement or the Prospectus which are not so disclosed therein.
(ix) The statements in the Registration Statement under the caption Business Facilities" have been reviewed by such counsel and insofar as they refer to descriptions of agreements, statutes, licenses, certifications, rules or regulations or legal conclusions, are correct in all material respects.
(x) This Agreement has been duly authorized and executed by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors rights generally and except that no opinion need be given with regard to the enforceability of Section 9 hereof or the availability of equitable relief.
(xi) To the best knowledge of such counsel: (a) no default exists, and no event has occurred which, with notice or lapse of time, or both, would constitute a default in the due performance and observance of any material term, covenant or condition by the Company, of any indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its business or its properties may be bound or affected, except where such default would not have a material adverse effect on the business of the Company and except as disclosed in the Prospectus; (b) the Company has full power and lawful authority to authorize, issue and sell the Units on the terms and conditions set forth herein and in the Registration Statement and in the Prospectus; (c) no consent, approval, authorization or other order of any regulatory authority is required for such authorization, issue or sale, except as may be required under the Act or State securities laws, clearance with the NASD and such other consent, approval, authorization or order as has been obtained and is in full force and effect; and (d) the execution and delivery of this Agreement, the consummation of the transactions herein contemplated, and compliance with the terms hereof will not conflict with, or constitute a default under, any material indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is now a party or by which it or its business or its properties may be bound or affected, the Certificate of Incorporation and any amendments thereto, the by-laws of the Company, or any order, rule or regulation, writ, injunction or decree of any government, governmental instrumentality, or court, domestic or foreign, having jurisdiction over the Company or its business or properties.
(xii) Except as disclosed in the Registration Statement and Prospectus, to the best knowledge of such counsel, there are no material actions, suits or proceedings at law or in equity of a material nature pending, or to such counsel's knowledge, threatened against the Company which are not adequately covered by insurance and there are no proceedings pending or, to the knowledge of such counsel, threatened against the Company before or by any Federal or State Commission, regulatory body, or administrative agency or other governmental body, wherein an unfavorable ruling, decision or finding would materially and adversely affect the business, operation or condition (financial or otherwise) of the Company, which are not disclosed in the Prospectus.
(xiii) The Underwriters' Unit Warrants to be issued to the Representative hereunder will be, when issued, duly and validly authorized and executed by the Company and will constitute valid and binding obligations of the Company, legally enforceable in accordance with their terms except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws pertaining to creditors rights generally and the Company will have duly authorized, reserved and set aside the shares of its Common Stock issuable upon exercise of the Underwriters' Unit Warrants and the underlying warrants and such stock, when issued and paid for upon exercise of the Underwriters' Unit Warrants and the underlying warrants in accordance with the provisions thereof, will be duly and validly issued, fully-paid and non-assessable. Such opinion shall also cover such other matters incident to the transactions contemplated by this Agreement as the Representative shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any officer of the Company or public officials as to matters of fact.
(h) The Company shall have furnished to the Representative certificates of the President and a Vice-President of the Company, dated as of the Closing Date, and Additional Closing Date(s), to the effect that:
(i) Each of the representations and warranties of the Company contained in Section 2 hereof is true and correct in all material respects at and as of such Closing Date, and the Company has performed or complied with all of its agreements, covenants and undertakings contained in this Agreement and has performed or satisfied all the conditions contained in this Agreement on its part to be performed or satisfied at the Closing Date;
(ii) The Registration Statement has become effective and no order suspending the effectiveness of the Registration Statement has been issued, and, to the best of the knowledge of the respective signers, no proceeding for that purpose has been initiated or is threatened by the Commission;
(iii) The respective signers have each carefully examined the Registration Statement and the Prospectus and any amendments and supplements thereto, and to the best of their knowledge the Registration Statement and the Prospectus and any amendments and supplements thereto and all statements contained therein are true and correct in all material respects, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have beenmisleading and, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth except changes which the Registration Statement and neither Prospectus indicate might occur.
(iv) Except as set forth or contemplated in the Registration Statement and Prospectus, since the respective dates as of which, or periods for which, information is given in the Registration Statement and Prospectus and prior to the date of such certificate (A) there has not been any material adverse change, financial or otherwise, in the business, business prospects, earnings, general affairs or condition (financial or otherwise), of the Company nor any (in each case whether or not arising in the ordinary course of its Subsidiaries shall have business), and (B) the Company has not incurred any material liabilities or material obligationsliabilities, direct or contingent, or entered into any material transactiontransactions, contract or agreement not otherwise than in the ordinary course of business other than as referred to or contemplated in the Registration Statement; Statement or Prospectus and (iv) except as set forth in each preliminary prospectus and changes which the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Registra
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter hereunder are subject to the accuracy, as of the date hereof and at each of the First Closing Date and the Second Closing Date (as if made at such Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The If filing of the Prospectus, or any amendment or supplement thereto, or any issuer free writing prospectus, is required under the Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such issuer free writing prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall have become effective under the Act and, at the Closing Date, remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, nor suspending or preventing the qualifications use of the Shares Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted before or, to the knowledge initiated or threatened; and any request of the Company Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or the Representatives, otherwise) shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityhave been complied with to your satisfaction.
(b) At each Closing Date, The Underwriter shall not have advised the Company that (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, Statement or any amendment thereof or supplement thereto, shall contain any thereto contains an untrue statement of a material fact which, in the Underwriter’s opinion, is material or omit omits to state any a material fact which, in the Underwriter’s opinion, is required to be stated therein or necessary to make the statements therein not misleading; , or (iiiii) there shall have beenthe Time of Sale Disclosure Package or the Prospectus, since or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an untrue statement of fact which, in the Underwriter’s opinion, is material, or omits to state a fact which, in the Underwriter’s opinion, is material and is required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(c) Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given, no material adverse change given in the condition (financial or otherwise), business, prospects or results Time of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus Sale Disclosure Package and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactiontransactions, contract or agreement declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company or its subsidiaries, or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business other than as referred business), that, in your judgment, makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Registration Statement; Time of Sale Disclosure Package and (iv) except as set forth in each preliminary prospectus and the Prospectus.
(d) On each Closing Date, no actionthere shall have been furnished to you the opinion of The Loev Law Firm, suit PC, counsel for the Company, dated such Closing Date and addressed to you in substantially the form attached hereto as Exhibit B.
(e) On each Closing Date, there shall have been furnished to you such opinion or proceeding at law or in equity shall be pending oropinions from Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, dated such Closing Date and addressed to you, with respect to the formation of the Company’ knowledge, threatened against the Company or any validity of its Subsidiaries that would be required to be set forth in the Securities, the Registration Statement, the Time of Sale Disclosure Package or the Prospectus and no proceedings shall be pending orother related matters as you reasonably may request, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you such counsel shall have received at each Closing Date, a certificate of the principal executive officer such papers and the principal financial or accounting officer of the Company, dated information as of they request to enable them to pass upon such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such datematters.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(df) On each Closing Date you shall have received a signed opinionletter of LBB & Associates Ltd., LLP, dated such date and addressed to you, confirming that it is an independent public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwritersletter (or, with respect to matters involving changes or developments since the sufficiency respective dates as of all corporate proceedings which specified financial information is given in the Time of Sale Disclosure Package, as of a date not prior to the date hereof or more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other legal matters relating covered by its letter delivered to you concurrently with the execution of this Agreement and the transactions contemplated herebyAgreement, and the effect of the letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(g) On each Closing Date, there shall have been furnished to you a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Securities for offering or sale, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) Affirms the accuracy of the matters set forth in subsection (c) of this Section 5.
(h) The Underwriter shall have received all of the Lock-Up Agreements referenced in Section 4.
(i) The Company shall have furnished to you and counsel for the Underwriter such counsel such documents additional documents, certificates and evidence as you or they may have reasonably requested for the purpose of enabling them to pass upon such mattersrequested.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(hj) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringarrangements.
(ik) At The Securities to be delivered on such Closing Date will have been approved for listing on the date Nasdaq Capital Market, subject to official notice of this Agreementissuance. All such opinions, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B heretocertificates, letters and such agreements shall other documents will be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale of the Shares shall be reasonably provisions hereof only if they are satisfactory in form and substance to you and counsel to for the several UnderwritersUnderwriter. The Company will furnish you with such conformed copies of such opinions, certificates, letters and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, documents as you or such counsel may shall reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective under the Act and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuanceNYSE Amex.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing DateRESERVED.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (NIVS IntelliMedia Technology Group, Inc.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Servicers, from that set forth in the Guaranty Agencies or College Loan not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementUnderwriter, and neither would materially adversely affect the Company nor market for the Notes; (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as the Servicers, the Guaranty Agencies or College Loan by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, the Servicers, the Guaranty Agencies or College Loan (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Daterating); or (iii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue or which, evidencing compliance with in the provisions of this Subsection 5(b), and confirming the accuracy of the representations opinion of the Company set forth and its counsel or the Underwriter and its counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriter, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of [__________], in its capacity as counsel to the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each Basic Document to which the Company is a party and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of [__________], in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning "true sale," "non-consolidation" and "first perfected security interest" and certain other issues with respect to the transfer of the Financed Student Loans from [__________] and the [__________] Eligible Lender Trustee to the Company and the Eligible Lender Trustee, and from the Company and the Eligible Lender Trustee to the Trustee and an opinion addressed to you of [__________] with respect to said perfected security interest being a first priority perfected security interest.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of [__________], in its capacity as counsel for the Company, dated as of such datethe Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, in form and substance satisfactory to you and your counsel to the several Underwriters, effect that the statements in the Prospectus under the headings "Federal Income Tax Consequences" and "ERISA Considerations," to the extent that they constitute statements of matters of law or legal conclusions with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated herebythereto, and the Company shall have furnished to been prepared or reviewed by such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersand are correct in all material respects.
(e) On each Closing Date you You shall have received the signed opinionan opinion addressed to you of [__________], dated in its capacity as of such date, of K&L Gates LLP, counsel to for the Company, dated the Closing Date, in form reasonably and substance satisfactory to you and your counsel for with respect to the Underwriters, together with signed or photostatic copies thereof for each character of the other UnderwritersNotes for federal tax purposes.
(f) At You shall have received an opinion addressed to you of [__________], in its capacity as Underwriter's Counsel, dated the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed in form and substance satisfactory to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwritersyou.
(g) As You shall have received an opinion addressed to you of [__________], in its capacity as counsel for the effective date of Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Prospectus and the Registration StatementStatement and certain matters arising under the Trust Indenture Act of 1939, as amended, and the Common Stock shall be listed on the NASDAQ Global MarketInvestment Company Act of 1940, subject to official notice of issuanceas amended.
(h) FINRA You shall have confirmed that it has not raised any objection received opinions addressed to you of [__________], as counsel to College Loan with respect to the fairness College Loan and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement[__________] as counsel to SPC, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B heretowith respect to SPC, and such agreements shall be in full force and effect on each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of College Loan and SPC is a corporation in good standing under the laws of their respective state of organization; each having the full power and authority, corporate and other, to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under each of the Basic Documents to which it is a party.
(ii) The Basic Documents to which College Loan is a party have been duly authorized, executed and delivered by College Loan and each such agreement is the legal, valid and binding obligation of College Loan, enforceable against College Loan in accordance with their respective terms, except (A) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights; and (B) remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(iii) Neither the execution and delivery by College Loan of the Basic Documents to which it is a party, nor the consummation by College Loan of the transactions contemplated therein nor the fulfillment of the terms thereof by College Loan will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the certificate or incorporation or bylaws of College Loan or of any indenture or other agreement or instrument to which College Loan is a party or by which College Loan is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to College Loan of any court, regulatory body, administrative agency or governmental body having jurisdiction over College Loan.
(iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge, threatened against College Loan before or by any governmental authority that might materially and adversely affect the performance by College Loan of its obligations under, or the validity or enforceability of, the Basic Documents to which it is a party.
(v) No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by College Loan of the Basic Documents to which it is a party.
(vi) The information contained in the Prospectus with respect to College Loan and its operations and business and with respect to the student loan business of the Company is true and correct in all material respects, and does not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(i) You shall have received an opinion addressed to you of counsel to the several UnderwritersTrustee and the Eligible Lender Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) Each of them is a banking corporation duly organized and validly existing under the laws of the State of New York.
(ii) Each of them has the full corporate trust power to accept the office of trustee under the Basic Documents to which they are a party and to enter into and perform their obligations under the Basic Documents to which they are a party and, additionally, in the case of the Trustee, the [____________] (collectively, the "Trustee Documents" and the "Eligible Lender Trustee Documents," as the case may be).
(iii) The execution and delivery by the Trustee and the Eligible Lender Trustee of the Trustee Documents and the Eligible Lender Trustee Documents, respectively, and the performance by such parties of their obligations thereunder, have been duly authorized by all necessary action and each has been duly executed and delivered by the Trustee and the Eligible Lender Trustee.
(iv) The Trustee Documents and the Eligible Lender Trustee Documents constitute valid and binding obligations of the Trustee and the Eligible Lender Trustee enforceable against such party.
(v) The Trustee and the Eligible Lender Trustee, respectively, is an "eligible lender" for purposes of the FFELP Program in its capacity as trustee with respect to Financed Student Loans.
(j) You shall have received certificates addressed to you dated the Closing Date of officials of the Company in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Company contained in the respective Basic Documents to which the Company is a party are true and correct in all material respects, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the time Closing Date; (ii) that they have reviewed the Prospectus and that the information therein is true and correct in all material respects; and (iii) since the date set forth in such certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change, in or affecting particularly the business or properties of signing this Agreement the Company has occurred.
(k) You shall have received certificates addressed to you dated the Closing Date of officials of College Loan in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of College Loan contained in the respective Basic Documents to which College Loan is a party are true and correct in all material respects, that College Loan has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date; (ii) that they have reviewed the Prospectus and that the information therein regarding College Loan and the Basic Documents to which it is a party is fair and accurate in all material respects; and (iii) since the date set forth in such certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change in, or affecting particularly the business or properties of College Loan has occurred.
(l) You shall have received evidence satisfactory to you that, on or before the Closing Date, you UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company and such counsel the Eligible Lender Trustee in the Financed Student Loans and the proceeds thereof to the Trustee.
(m) You shall have received each a certificate addressed to you dated the Closing Date from a responsible officer acceptable to you of the Eligible Lender Trustee and every additional document, letter, opinion, certificate or other item dated the [__________] Eligible Lender Trustee in form and executed in a manner reasonably substance satisfactory to you and your counsel and to which shall be attached each Guaranty Agreement.
(n) The Underwriter shall have received on the Closing Date from [__________] a letter dated the Closing Date, and in form and substance satisfactory to the Underwriter, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such counselspecified procedures.
(o) All the representations and warranties of the Company contained in this Agreement and the Basic Documents to which it is a party and of College Loan in the Basic Documents to which it is a party shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriter shall have received a certificate, dated the Closing Date and signed by officers of the Company and such entities to the effect set forth in this Section.
(p) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(q) The Underwriter shall have received by instrument dated the Closing Date (at the option of the Underwriter), in lieu of or in addition to the legal opinions referred to in this Section 6, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents.
(r) Each class of [______] Notes shall be rated ["___,"] ["___"] and ["___,"] respectively, by [______] (["_____"]),[______] (["______"]), and [______] (["______"]), the [______] Notes shall be rated ["__,"] ["__"] and ["__,"] or higher, by [______],[______] and [______], respectively, and that neither [______],[______] nor [______] have placed the Notes under surveillance or review with possible negative implications.
(s) The issuance of the Notes shall not have resulted in a reduction or withdrawal by [______],[______] or [______] of the current rating of any outstanding notes issued by the Company pursuant to the Indenture.
(t) You shall have received evidence satisfactory to you of the completion of all actions necessary to effect the transfer of the Financed Student Loans as described in the Prospectus and the recordation thereof on the Servicers' computer systems.
(u) You shall have received certificates addressed to you dated the Closing Date from officers of the Company and others addressing such additional matters as you or such counsel may reasonably request in connection form and substance satisfactory to you and your counsel.
(v) You shall have received certificates addressed to you dated the initial Closing Date of the Guaranty Agencies to the effect that (i) the information in the Prospectus with each preliminary prospectus, respect to the applicable Guaranty Agency is true and correct and is fair and accurate in all material respects; and (ii) that since the date of the Prospectus, no material adverse change in or affecting the Registration Statement, the offer and sale business or properties of the Shares hereunderapplicable Guaranty Agency has occurred.
(w) You shall have received certificates addressed to you dated the initial Closing Date of officials of each of [_____],[_____],[_____] and [_____] in which such officers shall state that, or proceedings at to the Closing Date. If any best of their knowledge after reasonable investigation, (i) the representations and warranties of the applicable Servicer contained in the respective Basic Documents to which such Servicer is a party are true and correct in all material respects, and that such Servicer has complied with all agreements and satisfied all conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters on its part to be performed or satisfied under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on agreements at or prior to the applicable initial Closing Date. The Representatives ; (ii) that they have reviewed the Prospectus and that the information therein regarding such Servicer and the Basic Documents to which it is a party is fair and accurate in all material respects; and (iii) since the date set forth in such certificate, except as may be disclosed in their sole discretion waive on behalf the Prospectus, no material adverse change or any development involving a prospective material adverse change, in or affecting particularly the business or properties of the Underwriters compliance with any conditions Servicer, has occurred.
(x) You shall have received certificates addressed to you dated the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional initial Closing Date or otherwise.of officials of each of [_____] and [_____] in
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase the Shares on the Closing Date or the Additional Closing Date, as the case may be, are subject to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement the Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have become effective under been filed with the Act and, at Commission within the Closing Date, applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted before or, or threatened; and all requests for additional information shall have been complied with to the knowledge satisfaction of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityUnderwriters.
(b) At each Closing Date, (i) the representations and warranties of the Company contained in this Agreement herein shall be true and correct with on and as of the same effect Closing Date or the Additional Closing Date, as the case may be, as if made on and as of such the Closing Date or the Additional Closing Date, as the case may be, and the Company shall have performed all of the obligations and complied with all of the agreements and all conditions hereunder on its part to be performed or complied with on satisfied hereunder at or prior to the Closing Date or the Additional Closing Date, as the case may be.
(c) since the respective dates as of which information is given in the Disclosure Package and the Final Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), prospects, earnings, business, properties, general affairs, management, consolidated financial position, results of operations, cash flows or stockholders’ equity of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which in the judgment of the Underwriters makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated in the Disclosure Package and the Final Prospectus; (ii) and neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Registration Statement, each preliminary prospectus Preliminary Prospectus and the Final Prospectus and any amendments 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(d) The Underwriters shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company, to the effect set forth in paragraphs (a), (b) and (c) of this Section 4.
(e) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, United States counsel for the Company, shall have furnished to the Underwriters their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, to the effect that:
(i) the Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto shall thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects conform to with the applicable requirements of the Act and the Rules rules thereunder;
(ii) other than as set forth or contemplated in the Disclosure Package and Regulationsthe Final Prospectus and insofar as matters of United States federal and New York state law are concerned, to the best of such counsel’s knowledge, there are no legal or governmental investigations, actions, suits or proceedings pending or threatened against or affecting the Company or any of its Subsidiaries or any of their respective properties or to which the Company or any of its Subsidiaries is or may be a party or to which any property of the Company or its Subsidiaries is or may be the subject which, if determined adversely to the Company or any of its Subsidiaries, would individually or in the aggregate have, or could reasonably be expected to have, a material adverse effect on the condition (financial or otherwise), prospects, earnings, business, properties, general affairs, management, consolidated financial position, results of operations, cash flows or stockholders’ equity of the Company and neither its Subsidiaries taken as a whole; and such counsel does not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, any preliminary prospectus the Preliminary Prospectus or the Final Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(iii) to the extent governed by the laws of the State of New York, this Agreement has been duly executed and delivered by the Company;
(iv) under the laws of the State of New York relating to personal jurisdiction, the Company has, pursuant to Section 11 of this Agreement, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a “New York Court”) in any action arising out of or relating to this Agreement or the transactions contemplated hereby, has validly and irrevocably waived any objection to the venue of a proceeding in any such court, and has validly and irrevocably appointed the Authorized Agent (as defined herein) as its authorized agent for the purpose described in Section 11 hereof; and service of process effected on such agent in the manner set forth in Section 11 hereof will be effective to confer valid personal jurisdiction over the Company;
(v) the statements in the Preliminary Prospectus and the Final Prospectus under “Service of Process and Enforcement of Liabilities,” “Management,” and “Related Party Transactions”, insofar as such statements constitute a summary of the terms of legal matters, documents or proceedings referred to therein, and the statements in the Preliminary Prospectus and the Final Prospectus under “Tax Considerations –United States Federal Income Tax Considerations” insofar as such statements describe United States federal income tax law, fairly summarize the information called for with respect to such terms, legal matters, documents, proceedings or descriptions;
(vi) the issue and sale of the Shares being delivered on the Closing Date or the Additional Closing Date, as the case may be, and the performance by the Company of its obligations under this Agreement and the consummation of the transactions contemplated herein will not result in a breach of any of the terms or provisions of, or constitute a default under, any material agreement or instrument, known to such counsel, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject;
(vii) no consent, approval, authorization, order, license, registration or qualification of or with any U.S. federal or New York state court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the Act and as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters or such as may be required by the NASD; and
(viii) the Company is not and, after giving effect to the offering and sale of the Shares, will not be an “investment company” or entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act. In rendering such opinions, such counsel may (A) limit its opinions to matters involving the application of laws of the United States and the State of New York and (B) rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company. The opinion of such counsel for the Company shall state that the opinion of any such other counsel upon which they relied is in form satisfactory to such counsel and, in such counsel’s opinion, the Underwriters and they are justified in relying thereon. Such opinion shall contain an IRS Circular 230 legend. The opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP described above shall be rendered to the Underwriters at the request of the Company and shall so state therein. Such counsel shall also state that, although they do not assume any responsibility for, and shall not be deemed to have independently ascertained or verified, the accuracy, completeness or fairness of the statements made in the Registration Statement or the Final Prospectus, except to the extent required by subsection (v) of this Section 4(e), nothing has come to their attention in the course of participating with officers and Underwriters of the Company in the preparation of the Registration Statement, the Disclosure Package and the Final Prospectus that have led them to believe that, insofar as relevant to the offering of the Shares, (other than the financial statements and related schedules and other financial and other statistical data contained therein, as to which such counsel need make no statement) (i) the Registration Statement or any amendment thereto at the date such Registration Statement or supplement theretoany amendment (or any part thereof) is considered to have become effective as to the Underwriters pursuant to Section 11(d) of the Act and Rule 430B(f) promulgated thereunder, shall contain contained any untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; , (iiiii) there shall have beenthe Final Prospectus, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations its date and as of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial as amended or accounting officer of the Companysupplemented, dated as of such Closing Dateif applicable, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to contained or contains any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Disclosure Package, as amended or supplemented at the Execution Time, and the price to the public, the number of Underwritten Shares and the number of Option Shares to be included on the cover page of the Final Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial information contained therein, as to which such counsel need make no statement).
(df) On each Closing Date you ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, ▇▇▇▇▇▇▇▇ Islands counsel for the Company, shall have received a signed furnished to the Underwriters their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, substantially to the effect set forth in Annex A hereto. In rendering opinions, such counsel may (A) limit its opinion to matters involving the application of the ▇▇▇▇▇▇▇▇ Islands laws and (B) rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company. The opinion of such datecounsel for the Company shall state that the opinion of any such other counsel upon which they relied is in form satisfactory to such counsel and, in such counsel’s opinion, the Underwriters and they are justified in relying thereon. The opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed (New York) LLP described herein shall be rendered to the Underwriters (with executed copies for each at the request of the Underwriters) in the form heretofore approved by counsel for the UnderwritersCompany and shall so state therein.
(g) As of The Potamitis Iliadou Vekris Paparrigopoulos Law Partnership (PI Partners), Greek counsel for the effective date of the Registration StatementCompany, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect furnished to the fairness Underwriters their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, in form and reasonableness of substance satisfactory to the underwriting terms and arrangements for this offering.Underwriters, to the effect that:
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the no consent or other form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be authorization is required from any court or governmental agency or body or any stock exchange authority in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date Greece in connection with the valid execution and delivery by the Company of this Agreement or the sale of the Shares shall by the Company or the consummation by the Company of the transactions contemplated by this Agreement;
(ii) all dividends and other distributions declared and payable on the shares of capital stock of the Company may under the current laws and regulations of Greece be reasonably satisfactory paid in form United States dollars and substance may be freely transferred out of Greece, and all such dividends and other distributions will not be subject to you withholding or other taxes under the laws and counsel regulations of Greece and are otherwise free and clear of any other tax, withholding or deduction in and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses, registrations, clearances and qualifications of or with any court or governmental agency or body or any stock exchange authorities in Greece;
(iii) to the several Underwritersbest of such counsel’s knowledge, and at there are no legal or governmental proceedings pending or threatened in Greece to which the time Company or any of signing its Subsidiaries is a party or to which any property of the Company or any of its Subsidiaries is the subject;
(iv) to the best of such counsel’s knowledge, the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict in any material respect with any Greek law;
(v) the Company and its Subsidiaries are not required to file tax returns or pay any taxes in Greece;
(vi) to the best of such counsel’s knowledge, each of the Company and its Subsidiaries do not need to obtain any licenses or other forms of authorization under Greek law, and do not need to make any declarations or filings with, any governmental authorities, self-regulatory organizations and any courts and other tribunals, in Greece, in order to own or lease, as the case may be, and to operate the vessel owned by each of its Subsidiaries and to conduct its business as described in the Disclosure Package and the Final Prospectus (other than such licenses or other forms of authorization the failure to obtain would not in the aggregate have a material adverse effect on the Closing Datecondition (financial or otherwise), you and such counsel shall have received each and every additional documentprospects, letterearnings, opinionbusiness, certificate properties, general affairs, management, consolidated financial position, results of operations, cash flows or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale stockholders’ equity of the Shares hereunderCompany and its Subsidiaries taken as a whole), or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying and neither the Company nor any such Subsidiary has received any actual notice of such cancellation on any proceeding relating to revocation or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.modif
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as the Servicers, a whole, from that set forth in Guarantee Agency or College Loan not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementUnderwriters, and neither would materially adversely affect the Company nor market for the Notes; (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as the Servicers, a Guarantee Agency or College Loan by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, the Servicers, a Guarantee Agency or College Loan (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Daterating); or (iii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue or which, evidencing compliance with in the provisions of this Subsection 5(b), and confirming the accuracy of the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Notes.
(dc) On You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as counsel to the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each Closing Date Basic Document to which the Company is a party and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received a signed opinionan opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, dated in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning "true sale," "non-consolidation" and creation of such datesecurity interest and certain other issues with respect to the transfer of the Financed Student Loans from College Loan and the College Loan Eligible Lender Trustee to the Company and the Eligible Lender Trustee, and from the Company and the Eligible Lender Trustee to the Trustee and an opinion addressed to you of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger with respect to said security interest being a first priority perfected security interest.
(d) You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ & Markiles LLP, in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel to the several Underwriters, effect that the statements in the Prospectus under the headings "Federal Income Tax Consequences" and "ERISA Considerations," to the extent that they constitute statements of matters of law or legal conclusions with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated herebythereto, and the Company shall have furnished to been prepared or reviewed by such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersand are correct in all material respects.
(e) On each Closing Date you You shall have received the signed opinion, dated as an opinion addressed to you of such date, of K&L Gates Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as counsel to for the Company, dated the Closing Date, in form reasonably and substance satisfactory to you and your counsel for with respect to the Underwriters, together with signed or photostatic copies thereof for each character of the other UnderwritersNotes for federal tax purposes.
(f) At You shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as Underwriters' Counsel, dated the time of the signing of this Agreement and on each Closing Date, you in form and substance satisfactory to you.
(g) You shall have received a signed letteran opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, datedin its capacity as counsel for the Company, respectivelydated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Prospectus and the Registration Statement and certain matters arising under the Trust Indenture Act of 1939, as amended, and the Investment Company Act of each such date1940, from as amended.
(h) You shall have received opinions addressed to you of The ▇▇▇▇▇▇▇ Firm, as counsel to College Loan with respect to College Loan and of Stroock & Stroock & ▇▇▇▇▇ LLP and/or ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Company Certified Public Accountants PCFinger as counsel to SPC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this AgreementSPC, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of College Loan and SPC is a corporation in good standing under the laws of their respective state of organization; each having the full power and authority, corporate and other, to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under each of the Basic Documents to which it is a party.
(ii) The Basic Documents to which College Loan is a party have been authorized, executed and delivered by appropriate officers acting for and on behalf of College Loan. Assuming authorization, execution and delivery by appropriate officers acting for and on behalf of the other parties thereto, each such agreement is legal, valid and binding upon College Loan, enforceable against College Loan in accordance with their respective terms, except (A) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights; and (B) remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(iii) Neither the execution and delivery by College Loan of the Basic Documents to which it is a party, nor the consummation by College Loan of the transactions contemplated therein nor the fulfillment of the terms thereof by College Loan will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of incorporation, as amended, or bylaws, as amended, of College Loan or of any indenture or other agreement or instrument to which College Loan is a party or by which College Loan is bound, or result in a violation of or contravene the terms of any California or federal statute, order or regulation applicable to College Loan of any California or federal court, regulatory body, administrative agency or governmental body having jurisdiction over College Loan.
(iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge, threatened against College Loan before or by any governmental authority that might materially and adversely affect the performance by College Loan of its obligations under, or the validity or enforceability of, the Basic Documents to which it is a party.
(v) No authorization, approval or other action by, and no notice to or filing with, any California or federal governmental authority or regulatory body is required for the due execution, delivery and performance by College Loan of the Basic Documents to which it is a party.
(vi) The information contained in the Prospectus with respect to College Loan and its operations and business and with respect to the student loan business of College Loan is true and correct in all material respects, and does not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(i) You shall have received an opinion addressed to you of counsel to the several UnderwritersTrustee and the Eligible Lender Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) Each of them is a banking corporation duly organized and validly existing under the laws of the State of New York.
(ii) Each of them has the full corporate trust power to accept the office of trustee under the Basic Documents to which they are a party and to enter into and perform their obligations under the Basic Documents to which they are a party and, additionally, in the case of the Trustee, the Market Agent Agreement (collectively, the "Trustee Documents" and the "Eligible Lender Trustee Documents," as the case may be).
(iii) The execution and delivery by the Trustee and the Eligible Lender Trustee of the Trustee Documents and the Eligible Lender Trustee Documents, respectively, and the performance by such parties of their obligations thereunder, have been duly authorized by all necessary action and each has been duly executed and delivered by the Trustee and the Eligible Lender Trustee.
(iv) The Trustee Documents and the Eligible Lender Trustee Documents constitute valid and binding obligations of the Trustee and the Eligible Lender Trustee enforceable against such party.
(v) The Trustee and the Eligible Lender Trustee, respectively, is an "eligible lender" for purposes of the FFELP Program in its capacity as trustee with respect to Financed Student Loans.
(j) You shall have received certificates addressed to you dated the Closing Date of officials of the Company in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Company contained in the respective Basic Documents to which the Company is a party are true and correct in all material respects, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the time Closing Date; (ii) that they have reviewed the Prospectus and that the information therein is true and correct in all material respects; and (iii) since the date set forth in such certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change, in or affecting particularly the business or properties of signing this Agreement the Company has occurred.
(k) You shall have received certificates addressed to you dated the Closing Date of officials of College Loan in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of College Loan contained in the respective Basic Documents to which College Loan is a party are true and correct in all material respects, that College Loan has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date; (ii) that they have reviewed the Prospectus and that the information therein regarding College Loan and the Basic Documents to which it is a party is fair and accurate in all material respects; and (iii) since the date set forth in such certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change in, or affecting particularly the business or properties of College Loan has occurred.
(l) You shall have received evidence satisfactory to you that, on or before the Closing Date, you UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company and such counsel the Eligible Lender Trustee in the Financed Student Loans and the proceeds thereof to the Trustee.
(m) You shall have received each a certificate addressed to you dated the Closing Date from a responsible officer acceptable to you of the Eligible Lender Trustee and every additional document, letter, opinion, certificate or other item dated the College Loan Eligible Lender Trustee in form and executed in a manner reasonably substance satisfactory to you and your counsel and to which shall be attached each Guarantee Agreement.
(n) The Underwriters shall have received on the Closing Date from Price WaterhouseCoopers a letter dated on or before the Closing Date, and in form and substance satisfactory to the Underwriters, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such counselspecified procedures.
(o) All the representations and warranties of the Company contained in this Agreement and the Basic Documents to which it is a party and of College Loan in the Basic Documents to which it is a party shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriters shall have received a certificate, dated the Closing Date and signed by officers of the Company and such entities to the effect set forth in this Section.
(p) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(q) The Underwriters shall have received by instrument dated the Closing Date (at the option of the Underwriters), in lieu of or in addition to the legal opinions referred to in this Section 6, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents.
(r) Each class of Series 2003-2A Notes shall be rated "AAA," "AAA" and "Aaa," respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies ("S&P"), and ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇"), and that neither Fitch, S&P nor Moody's have placed the Notes under surveillance or review with possible negative implications.
(s) The issuance of the Notes shall not have resulted in a reduction or withdrawal by S&P or Moody's of the current rating of any outstanding notes issued by the Company pursuant to the Indenture.
(t) You shall have received evidence satisfactory to you of the completion of all actions necessary to effect the transfer of the Financed Student Loans as described in the Prospectus and the recordation thereof on the Servicers' computer systems.
(u) You shall have received certificates addressed to you dated the Closing Date from officers of the Company and others addressing such additional matters as you or such counsel may reasonably request in connection form and substance satisfactory to you and your counsel.
(v) You shall have received certificates addressed to you dated the initial Closing Date of the Guarantee Agencies to the effect that (i) the information in the Prospectus with each preliminary prospectus, respect to the applicable Guarantee Agency is true and correct and is fair and accurate in all material respects; and (ii) that since the date of the Prospectus, no material adverse change in or affecting the Registration Statement, the offer and sale business or properties of the Shares hereunderapplicable Guarantee Agency has occurred.
(w) You shall have received certificates addressed to you dated the initial Closing Date of officials of each of ACS and GLESI in which such officers shall state that, or proceedings at to the Closing Date. If any best of their knowledge after reasonable investigation, (i) the representations and warranties of the applicable Servicer contained in the Servicing Agreement to which it is a party are true and correct in all material respects, that such Servicer has complied with all agreements and satisfied all conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters on its part to be performed or satisfied under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on agreements at or prior to the applicable initial Closing Date. The Representatives ; (ii) that they have reviewed the Prospectus and that the information therein regarding the applicable Servicer is fair and accurate in all material respects; and (iii) since the date set forth in such certificate, except as may be disclosed in their sole discretion waive on behalf of the Underwriters compliance with Prospectus, no material adverse change or any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.de
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are Underwriter to purchase and pay for the Units as provided herein shall be subject to the accuracy of the representations and warranties of the Company, in the case of the Firm Units, as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date), and in the case of the Option Unit , as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date); to the performance by the Company of its obligations hereunder; and to the satisfaction of the following conditionsadditional conditions on or before the First Closing Date in the case of the Firm Units and on or before the Second Closing Date in the case of the Option Units:
(a) The Registration Statement shall have become effective under not later than 4:00 p.m. Minneapolis, Minnesota time on the Act anddate of this Agreement, at or such later date or time as shall be consented to in writing by you (the Closing "Effective Date, "); and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares thereof shall have been issued and no proceedings for that purpose shall have been instituted before initiated or, to the knowledge of the Company Company, or the RepresentativesUnderwriter, shall be contemplated threatened by the Commission or any state securities commission or “Blue Sky” commissioner similar regulatory body; and any request of the Commission for additional information (to be included in the Registration Statement or authoritythe Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriter and Underwriter's Counsel.
(b) At each Closing DateThe Underwriter shall not have advised the Company that the Registration Statement or Prospectus, (i) or any amendment thereof or supplement thereto, contains any untrue statement of a fact which is material or omits to state a fact which is material and is required to be stated therein or is necessary to make the representations and warranties statements contained therein, in light of the Company contained in circumstances under which they were made, not misleading; provided, however, that this Agreement Section 5(b) shall be true not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and correct with the same effect as if made on and as of such Closing Date and conform to written information furnished to the Company shall have performed all by the Underwriter specifically for use in the preparation of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus Statement or the Prospectus, or any such amendment or supplement theretosupplement.
(c) Subsequent to the Effective Date and prior to each Closing Date, 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; (iii) there shall not have beenoccurred any change, since or any development involving a prospective change, which materially and adversely affects the respective dates as of which information is given, no material adverse change in the Company's condition (financial or otherwise), businessearnings, operations, properties, business or business prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration StatementStatement or Prospectus, each preliminary prospectus and which, in the Underwriter's sole judgment, is material and adverse and that makes it, in the Underwriter's sole judgment, impracticable or inadvisable to proceed with the public offering of the Units as contemplated by the Prospectus and this Agreement.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, except changes that and the Registration Statement indicates might occur after the effective date registration, authorization, issue, sale and delivery of the Registration StatementUnits shall have been reasonably satisfactory to Underwriter's Counsel, and neither the Company nor any of its Subsidiaries Underwriter's Counsel shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the ordinary course of business other than as matters referred to or contemplated in the Registration Statement; and this Section.
(ive) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at On each Closing Date, a certificate the Underwriter shall have received the opinion of the principal executive officer ▇▇▇▇▇▇ and the principal financial or accounting officer of ▇▇▇▇▇▇, P.A., counsel for the Company, dated as of such Closing Date, evidencing compliance with satisfactory in form and substance to the provisions Underwriter and Underwriter's Counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of this Subsection 5(bthe jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement and Prospectus.
(ii) The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), and confirming the accuracy earnings, operations or business of the representations Company. To the best of such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity.
(iii) The capital stock of the Company set forth conforms as to legal matters to the description thereof contained in Section 1 hereof the Prospectus under the caption "Description of Securities." The issued and confirming that all conditions set forth herein to be met by outstanding shares of capital stock of the Company have been met as duly and validly issued and are fully paid and non-assessable, and the holders thereof are not subject to any personal liability solely by reason of being such dateholders.
(civ) No Underwriter shall have discovered and disclosed The Units to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and non-assessable, and the holders thereof will not be subject to personal liability solely by reason of being such holders. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of capital stock pursuant to the Company's articles of incorporation, bylaws or any agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound. To the best of such counsel's knowledge, except as set forth in the Prospectus, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of capital stock or other securities of the Company and no such rights exist, other than those rights that have been waived prior to the date hereof. To the best of such counsel's knowledge, except as described in the Registration Statement and Prospectus, there are no options, warrants, agreements, contracts or rights in existence to purchase or acquire from the Company any Closing Date shares of capital stock of the Company.
(v) The Underwriter's Warrants, the Warrants and the Warrant Shares have been duly authorized. The Underwriter's Warrants and the Warrants, when issued and delivered to the Underwriter, will constitute valid and binding obligations of the Company in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the rights of creditors generally and by judicial limitations and the right of specific performance. The Warrant Shares, when issued in accordance with the terms of this Agreement and pursuant to the Underwriter's Warrants, will be fully paid and non-assessable and subject to no preemptive rights or similar rights on the part of any person or entity. A sufficient number of shares of Common Stock of the Company has been reserved for issuance by the Company upon exercise of the Underwriter's Warrants and the Warrants.
(vi) The Company has the requisite corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriter the Units to be issued and sold by it hereunder. This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Underwriter, is a valid, legal and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification and contribution provisions may be limited by applicable law or the public policies underlying such law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(vii) The Registration Statement has become effective under the Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is pending or threatened under the Securities Act.
(viii) The Registration Statement and the Prospectus, and each amendment thereof or supplement thereto (other than the financial statements, including the notes thereto and the supporting schedules, and other financial, numerical, statistical and accounting data derived therefrom, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(ix) The forms of certificates evidencing a Unit, a Share and a Warrant, filed as exhibits to the Registration Statement, comply with Minnesota law.
(x) The description in the Registration Statement and the Prospectus of the Company's articles of incorporation and bylaws and of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be presented by the Securities Act and the applicable Rules and Regulations; and such counsel does not know of any preliminary prospectus statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any agreements, contracts, leases or documents of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required.
(xi) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated (other than performance of the Company's indemnification and contribution obligations hereunder, concerning which no opinion need be expressed) do not result in any violation of the Company's articles of incorporation or bylaws or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other material agreement or instrument known to such counsel to which the Company is a party or by which its properties are bound, or any applicable statute, rule or regulation known to such counsel or, to the best of such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or other any of its material properties or operations.
(xii) No consent, approval, authorization or order of, or filing with, or qualification with, any court, government or governmental agency or body is necessary in connection with the execution, delivery and performance of this Agreement or for the execution, delivery and performance of this Agreement or for the consummation of the transactions herein contemplated, except such as have been obtained under the Securities Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and the distribution of the Units by the Underwriter.
(xiii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company of a character required to be disclosed in the Registration Statement or the Prospectus by the Securities Act or the Rules and Regulations, other than those described therein.
(xiv) To the best of such counsel's knowledge, the Company is not presently (A) in violation of its articles of incorporation or bylaws, (B) in material breach or violation of any applicable statute, rule or regulation known to such counsel or any order, writ or decree of any court or governmental agency or body, or (C) in breach of or otherwise in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, loan agreement or any other material contract, lease or other instrument to which the Company is subject or by which it may be bound, or to which any of the material assets or property of the Company is subject.
(xv) To the best of such counsel's knowledge, the Company holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any government or self-regulatory body required for the conduct of its business, and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect.
(xvi) To the best of such counsel's knowledge, after due inquiry, the Company has not received any notice (other than a notice of claim which has been resolved) of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trade marks, service marks, trade names, or copyrights (other than notices which have been received relating to the Company's trade dress and menu which such counsel believes, to the best of its knowledge, have been resolved) which, singularly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company.
(xvii) To the best of such counsel's knowledge, after due inquiry, the Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trade marks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus.
(xviii) A statement of fact (but not an opinion) that, on the basis of information obtained as a result of discussions and meetings with officers and other Underwriter of the Company, discussions with Underwriter of the independent public accountants for the Company in connection with the preparation of the Registration Statement and the Prospectus, and the examination of other information and documents requested by such counsel, nothing has come to such counsel's attention that has caused them to believe that the Registration Statement and any amendment or supplement theretothereof, contains an at the time it became effective and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to or that the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated herebyProspectus, and any amendment or supplement thereto, at the Company shall have furnished first date of its issuance and up to such counsel such documents as they may have reasonably requested for the purpose of enabling them and at all times subsequent thereto up to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each that Closing Date, you shall have received contained any untrue statement of a signed lettermaterial fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, datedin light of the circumstances under which they were made, respectivelynot misleading. Such counsel may further state that in making the foregoing comments, such counsel does not intend them to include or cover the financial statements and notes thereto and related schedules and other financial, numerical, statistical and accounting data contained or omitted from the Registration Statement and any amendment or supplement thereto and the Prospectus. Counsel rendering the foregoing opinion may rely as to questions of law not involving the laws of the United States or the State of Minnesota upon opinions of local counsel, and, as to questions of each such datefact, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each upon representations or certificates of officers of the Underwriters) Company and of government officials, in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.which case thei
Appears in 1 contract
Sources: Underwriting Agreement (Founders Food & Firkins LTD /Mn)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Bank under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Bank or the RepresentativesUnderwriters, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authoritySEC.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since Since the respective dates as of which information is givengiven in the Registration Statement (or any amendment or supplement thereto), no material adverse change except as may otherwise be stated therein or contemplated thereby, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in Bank not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectusopinion of the Representative, except changes that would materially adversely affect the market for the Notes, or (ii) any event or development which makes any statement made in the Registration Statement indicates might occur after or Prospectus untrue in any material respect or which, in the effective date opinion of the Registration StatementBank and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(c) The Representative shall have received on the Closing Date an opinion of Prickett, Jones, Elliott, Kristol & Schnee, special Delaware counsel for the Trust, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ng ▇▇▇▇ ▇nd addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of Exhibit A hereto.
(d) On each Closing Date you The Representative shall have received a signed opinionon the Closing Date an opinion of Foley & Lardner, special counsel for the Bank, dated as of such date, of the Closing D▇▇▇ ▇nd addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of Exhibit B hereto. The Representative shall also have received on the Closing Date an opinion relating to the "eligible lender" status of the Indenture Trustee of either Dean Blakey & Moskowitz or Foley & Lardner, special counsel for th▇ ▇▇▇▇, ▇▇▇ed ▇▇▇ ▇▇▇▇▇ng D▇▇▇ ▇nd ▇▇▇▇▇▇▇ed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel.
(e) The Representative shall have received on the Closing Date an opinion of Hunton & Williams, counsel for the Bank, dated the Closing Date and address▇▇ ▇▇ ▇▇e Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of Exhibit C hereto.
(f) The Representative shall have received on the Closing Date an opinion of the Law Department of the Eligible Lender Trustee, dated the Closing Date and addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of Exhibit D hereto.
(g) The Representative shall have received on the Closing Date an opinion of White & Case, counsel for the Indenture Trustee, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel and substantially in the form of Exhibit E hereto.
(h) The Representative shall have received on the Closing Date the opinion of Squire, Sanders & Dempsey L.L.P., special counsel for the Underwriters, da▇▇▇ ▇▇▇ Cl▇▇▇▇▇ & Markiles LLP▇ate, counsel and addressed to the several Underwriters, with respect in form and scope satisfactory to the sufficiency Representative and substantially in the form of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersExhibit F hereto.
(ei) On each Closing Date you The Representative shall have received on the signed opinionClosing Date the opinion of Hunton & Williams, counsel for the Bank, dated as of such date, of K&L Gates LLP, counsel to the CompanyClosing Date and address▇▇ ▇▇ ▇▇e Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of Exhibit G.
(j) The Representative shall have received on the Closing Date the opinion of Foley & Lardner, counsel for the Bank, dated the Closing Date and ▇▇▇▇▇ssed to the Underwriters, together with signed or photostatic copies thereof for each in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of the other UnderwritersExhibit H hereto.
(fk) At the time of the signing of this Agreement and on each Closing Date, you The Representative shall have received a signed letteron the Closing Date the opinion of Hunton & Williams, datedcounsel for the Bank, respectivelydated the Closing Date and address▇▇ ▇▇ ▇▇e Underwriters, as in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of each such dateExhibit I hereto.
(l) The Representative shall have received on the Closing Date the opinion of Hunton & Williams, from counsel for the Bank, dated the Closing Date and address▇▇ ▇▇ ▇▇e Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel and substantially in the form of Exhibit J hereto.
(m) The Representative shall have received on the Closing Date the opinions of Squire, Sanders & Dempsey L.L.P. and Sheila Dow-Ford, Chief Counsel of the ▇▇▇▇▇▇lva▇▇▇ ▇▇▇her Educatio▇ ▇▇▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇ency, respectively, dated the Closing Date and addressed to the Underwriters (with executed copies for each of Underwriters, in form and scope reasonably satisfactory to the Underwriters) Representative and its counsel and substantially in the form heretofore approved by counsel for the Underwritersforms of Exhibits K-1 and K-2 respectively, hereto.
(gn) As of The Representative shall have received a letter dated the effective date of the Registration Statement, the Common Stock delivery thereof (which shall be listed on the NASDAQ Global Market, subject or prior to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement) from KPMG Peat Marwick, and in form and substance reasonably satisfactory to the Representatives Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such specified procedures.
(o) All the representations and warranties of the Bank contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Representative shall have received an agreement substantially in a certificate, dated the form of Annex A hereto Closing Date and signed by an executive officer of the persons listed on Schedule B heretoBank, to the effect set forth in this Section 6(o) and such in Section 6(p) hereof.
(p) The Bank shall not have failed at or prior to the Closing Date to have performed or complied in any material respect with any of its agreements shall herein contained and required to be in full force and effect on performed or complied with by it hereunder at or prior to the Closing Date.
(jq) All proceedings taken at or prior to each The Representative shall have received by instrument dated the Closing Date (at the option of the Representative), in connection lieu of or in addition to the opinions referred to in clauses (c) through (m) of this Section (6), the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents to Moody's Investors Service, Inc. ("Moody's"), Fitch IBCA, Inc. ("Fi▇▇▇") ▇nd Standard & Poor's Ratings Services ("Standard & Poor's").
(r) Moody's, Fitch and Standard & Poor's shall have rated the Class A ▇▇▇▇▇ "Aaa", "AAA", and "AAA", respectively, and the Class B Notes at least "A2", "A" and "A", respectively, and there shall not have been any announcement by Moody's, Fitch or Standard & Poor's that (i) it is downgrading any of its ratings assigned to any Class of Notes or (ii) it is reviewing its ratings assigned to any Class of Notes with a view to possible downgrading, or with negative implications, or direction not determined.
(s) The Bank shall have furnished or caused to be furnished to the Representative an executed copy or certified copy of an executed copy of each of the Basic Documents, each Guarantee Agreement, each Subservicing Agreement and such further certificates and documents as the Representative shall have reasonably requested.
(t) The Representative shall have received evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the State Corporation Commission of Virginia reflecting the transfer of the interest of the Bank in the Financed Student Loans to the Eligible Lender Trustee on behalf of the Trust and the proceeds thereof to the Trust and in the offices of the Secretaries of State of the States of Ohio and Delaware reflecting the grant of the security interest by the Trust in the Financed Student Loans and the proceeds thereof to the Indenture Trustee. All such opinions, certificates, letters and other documents will be in compliance with the sale of the Shares shall be provisions hereof only if they are reasonably satisfactory in form and substance to you the Representative and counsel to for the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseRepresentative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective under the Act and, at the Closing Date and if applicable, the Option Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Initial Shares or the Option Shares, as the case may be, shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each the Closing Date and if applicable, the Option Closing Date, (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 such Closing Date or the Option Closing Date, as the case may be, and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date or the Option Closing Date, as the case may be; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each the Closing Date or the Option Closing Date, as the case may be, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date or the Option Closing Date, as the case may be, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any the Closing Date or if applicable, the Option Closing Date, as the case may be, that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each the Closing Date and if applicable, the Option Closing Date, you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, G▇▇▇▇▇▇▇▇ & Markiles LLPT▇▇▇▇▇▇ PA, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each the Closing Date and if applicable, the Option Closing Date, you shall have received the signed opinion, dated as of such date, of K&L Gates LLPK▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PLC, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuanceNYSE Amex.
(hg) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(jh) All proceedings taken at or prior to each the Closing Date or if applicable, the Option Closing Date, in connection with the sale of the Initial Shares or Option Shares, as the case may be, shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date or the Option Closing Date, as the case may be, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date or the Option Closing Date, as the case may be. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date or the Option Closing Date, as the case may be. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date or the Option Closing Date, an Additional Closing Date as the case may be, or otherwise.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are Underwriter to purchase and pay for the Units as provided herein shall be subject to the accuracy of the representations and warranties of the Company, in the case of the Firm Units, as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date), and in the case of the Option Units, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date); to the performance by the Company of its obligations hereunder; and to the satisfaction of the following conditionsadditional conditions on or before the First Closing Date in the case of the Firm Units and on or before the Second Closing Date in the case of the Option Units:
(a) The Registration Statement shall have become effective under not later than 4:00 p.m. Minneapolis, Minnesota time on the Act anddate of this Agreement, at the Closing Date, or such later date or time as shall be consented to in writing by you; and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares thereof shall have been issued and no proceedings for that purpose shall have been instituted before initiated or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated threatened by the Commission SEC or any state securities commission or “Blue Sky” commissioner similar regulatory body; and any request of the SEC for additional information (to be included in the Registration Statement or authoritythe Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriter and Underwriter's Counsel.
(b) At each Closing Date, (i) the representations and warranties of The Underwriter shall not have advised the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) that the Registration Statement, each preliminary prospectus and the Prospectus and any amendments Statement or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment thereof or supplement thereto, shall contain contains any untrue statement of a material fact or omit omits to state any a material fact which is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that this Section 5(b) shall not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by the Underwriter specifically for use in the preparation of the Registration Statement or the Prospectus, or any such amendment or supplement.
(iiic) Subsequent to the Effective Date and prior to each Closing Date, there shall not have beenoccurred any change, since or any development involving a prospective change, which materially and adversely affects the respective dates as of which information is given, no material adverse change in the Company's condition (financial or otherwise), businessearnings, operations, properties, business or business prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration StatementStatement or Prospectus, each preliminary prospectus and which, in the Underwriter's sole judgment, is material and adverse and that makes it, in the Underwriter's sole judgment, impracticable or inadvisable to proceed with the public offering of the Units as contemplated by the Prospectus and this Agreement.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, except changes that and the Registration Statement indicates might occur after the effective date registration, authorization, issue, sale and delivery of the Registration StatementUnits shall have been reasonably satisfactory to Underwriter's Counsel, and neither the Company nor any of its Subsidiaries Underwriter's Counsel shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the ordinary course of business other than as matters referred to or contemplated in the Registration Statement; and this Section.
(ive) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at On each Closing Date, a certificate the Underwriter shall have received the opinion of the principal executive officer ▇▇▇▇▇▇ and the principal financial or accounting officer of ▇▇▇▇▇▇, P.A., counsel for the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you the Underwriter and Underwriter's Counsel, to the effect that:
(i) Each of the Company and the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement and Prospectus.
(ii) Each of the Company and the Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Subsidiaries considered as one enterprise. To the best of such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries.
(iii) The capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Securities." The issued and outstanding Units of the Company have been duly and validly issued and are fully paid and non-assessable, and the holders thereof are not subject to any personal liability solely by reason of being such holders.
(iv) The Units to be issued by the Company pursuant to the terms of this Agreement, and the shares of Common Stock included in the Units, have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and non-assessable, and the holders thereof will not be subject to personal liability solely by reason of being such holders. The shares of Common Stock issuable upon exercise of the Redeemable Warrants included in the Units have been duly authorized and, when issued and delivered upon such exercise, will be duly and validly issued and fully paid and non-assessable, and the holders thereof will not be subject to personal liability solely by reason of being such holders. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of capital stock pursuant to the Company's articles of incorporation, bylaws or any agreement or other instrument known to such counsel to which the several UnderwritersCompany is a party or by which the Company is bound. To the best of such counsel's knowledge, except as set forth in the Prospectus, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of capital stock or other securities of the Company and at no such rights exist, other than those rights that have been waived prior to the time date hereof. To the best of signing such counsel's knowledge, except as described in the Registration Statement and Prospectus, there are no options, warrants, agreements, contracts or rights in existence to purchase or acquire from the Company any shares of capital stock of the Company.
(v) The Redeemable Warrants included in the Units to be sold by the Company have been duly and validly authorized and, when authenticated by the Warrant Agent and issued, delivered and sold in accordance with this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item Warrant Agreement dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicatedhereof between the Company and the Warrant Agent, all will have been duly and validly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the several Underwriters under this Agreement Company, enforceable against the Company in accordance with their terms, except as enforceability may be cancelled limited by the Representatives application of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by notifying judicial limitations on the right of specific performance. A sufficient number of shares of Common Stock of the Company has been reserved for issuance by the Company upon exercise of such cancellation on or prior the Redeemable Warrants.
(vi) The Underwriter's Warrants and the shares of Common Stock and Redeemable Warrants included in the Warrant Units have been duly authorized. The Underwriter's Warrants, when issued and delivered to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the Underwriter, will constitute valid and binding obligations of the Underwriters Company in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the rights of creditors generally and by judicial limitations on the right of specific performance and except insofar as the indemnification provisions thereof may be limited by applicable law and the policies underlying such law. The shares of Common Stock included in the Warrant Units, when issued in accordance with the terms of this Agreement and pursuant to the Underwriter's Warrants, will be fully paid and nonassessable and subject to no preemptive rights or similar rights on the part of any person or entity. The Redeemable Warrants included in the Warrant Units, when authenticated by the Warrant Agent and issued, delivered and sold in accordance with this Agreement, the Warrant Agreement between the Company and the Warrant Agent, and the Underwriter's Warrants, will have been duly and validly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium or similar laws effecting the rights of creditors generally and by judicial limitations on the right of specific performance. The shares of Common Stock issuable upon exercise of the Redeemable Warrants included in the Warrant Units have been duly authorized and, when issued and delivered upon such exercise, will be validly issued, fully paid and non-assessable and, to such counsel's knowledge, subject to no preemptive rights or similar rights on the part of any person or entity. A sufficient number of shares of Common Stock of the Company has been reserved for issuance by the Company upon exercise of the Underwriter's Warrants and the Redeemable Warrants included in the Warrant Units.
(vii) The Company has the requisite corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriter the Units to be issued and sold by it hereunder. This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Underwriter, is a valid, legal and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification and contribution provisions may be limited by applicable law or the public policies underlying such law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(viii) The Registration Statement has become effective under the Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is pending or threatened under the Securities Act.
(ix) The Registration Statement and the Prospectus, and each amendment thereof or supplement thereto (other than the financial statements, including the notes thereto and the supporting schedules, and other financial, numerical, statistical and accounting data derived therefrom, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(x) The forms of certificates evidencing the Common Stock and the Redeemable Warrants and filed as exhibits to the Registration Statement comply with Minnesota law.
(xi) The description in the Registration Statement and the Prospectus of the Company's articles of incorporation and bylaws and of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be presented by the Securities Act and the applicable Rules and Regulations; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any agreements, contracts, leases or documents of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required.
(xii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated (other than performance of the Company's indemnification and contribution obligations hereunder, whether concerning which no opinion need be expressed) do not result in respect any violation of the First Closing DateCompany's articles of incorporation or bylaws or result in a breach or violation of any of the terms and provisions of, an Additional Closing Date or otherwiseconstitute a default under, any bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other material agreement or instrument known to such counsel to which the Company is a party or by which its properties are bound, or any applicable statute, rule or regulation known to such counsel or, to the best of such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or the Subsidiaries or other any of their material properties or operations.
(xiii) No consent, approval, authorization or order of, or filing with, or qualification with, any court, government or governmental agency or body is necessary in connection with the execution, delivery and performance of this Agreement or for the execution, delivery and performance of this Agreement or for the consummation of the transactions herein contemplated, except such as have been obtained under the Securities Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and the distribution of the Units by the Underwriter.
(xiv) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Securities Act or the Rules and Regulations, other than those described therein.
(xv) To the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is presently (A) in violation of its respective articles of incorporation or bylaws, (B) in material breach or violation of any applicable statute, rule or regulation known to such counsel or any order, writ or decree of any court or governmental agency or body, or (C) in breach of or otherwise in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, loan agreement or any other material contract, lease or other instrument to which the Company is subject or by which it may be bound, or to which any of the material assets or property of the Company is subject.
(xvi) To the best of such counsel's knowledge, the Company holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any government or self-regulatory body required for the conduct of its business, and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect.
(xvii) To the best of such counsel's knowledge, after due inquiry, the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trade marks, service marks, trade names, or copyrights which, singularly or in the aggregate, if the
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter to purchase the Notes hereunder are subject to the following conditions:
A. With respect to the Notes to be purchased on the Initial Closing Date:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development involving a prospective change, in 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a whole, from that set forth in The Money Store or the Surety Provider not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectusopinion of the Underwriter, except changes that would materially adversely affect the market for the Notes, or (ii) any event or development which makes any statement made in the Registration Statement indicates might occur after or Prospectus untrue or which, in the effective date opinion of the Registration StatementCompany and its counsel or the Underwriter and its counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriter, materially adversely affect the market for the Notes.
(dc) On each Closing Date you The Underwriter shall have received a signed opinionon the Initial Closing Date opinions of Squire, dated as of such dateSanders & Dempsey, of special Arizona counsel for the Com▇▇▇▇, ▇nd ▇▇▇▇▇, Rock, special counsel for the Company, dated the Initial Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(d) The Underwriter shall have received on the Initial Closing Date an opinion of Eric R. Elwin, Esq., General Counsel of the Company an▇ ▇▇▇ ▇▇▇▇▇ ▇tore, dated the Initial Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(e) The Underwriter shall have received on the Initial Closing Date an opinion of Rhoads & Sinon, Esqs., counsel for the Eligible Lender ▇▇▇▇▇ee, ▇▇▇ & Markiles LLP, counsel ▇▇d the Initial Closing Date and addressed to the several Underwriters, with respect Underwriter in form and scope satisfactory to the sufficiency of all corporate proceedings Underwriter and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwritersits counsel.
(f) At the time of the signing of this Agreement and on each Closing Date, you The Underwriter shall have received a signed letteron the Initial Closing Date an opinion of counsel for AMBAC Indemnity Corporation (the "Surety Provider"), dateddated the Initial Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(g) The Underwriter shall have received on the Initial Closing Date an opinion of White & Case, respectivelyEsqs., as counsel for the Indenture Trustee, dated the Initial Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(h) The Underwriter shall have received on the Closing Date an opinion or opinions of each such dateStroock & Stroock & Lavan, from counsel for the Underwriter, dated the Initial ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCng Date, and addressed to the Underwriters (with executed copies for each of the Underwriters) Underwriter, in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect and scope satisfactory to the fairness and reasonableness of the underwriting terms and arrangements for this offeringUnderwriter.
(i) At the date of this Agreement, the Representatives The Underwriter shall have received on the Initial Closing Date from KPMG Peat Marwick L.L.P. a letter dated the Initial Closing Date, and in form and substance satisfactory to the Underwriter, to the effect that they have carried out certain specified procedures, not constituting an agreement substantially audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such specified procedures.
(i) There shall not have been, since the respective dates as of which information is given in the form Registration Statement (or any amendment or supplement thereto), except as may otherwise be stated therein, any material adverse change in the condition (financial or other), business, prospects, properties, net worth or results of Annex A hereto operations of the Company or of The Money Store, and (ii) all the representations and warranties of the Company and The Money Store contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Initial Closing Date as if made on and as of the Initial Closing Date and the Underwriter shall have received a certificate, dated the Initial Closing Date and signed by an executive officer of the persons listed on Schedule B heretoCompany and The Money Store, to the effect set forth in this Section 6(j) and such in Section 6(k) hereof.
(k) Neither the Company nor The Money Store shall have failed at or prior to the Initial Closing Date to have performed or complied with any of its respective agreements shall herein contained and required to be in full force and effect on performed or complied with by it hereunder at or prior to the Initial Closing Date.
(jl) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel The Underwriter shall have received each and every additional documentby instrument dated the Initial Closing Date (at the option of the Underwriter), letterin lieu of or in addition to the opinions referred to in clauses (c) through (h) of this Section (6), opinion, certificate or other item dated and executed in a manner reasonably satisfactory the right to you and such counsel, as you or rely on opinions provided by such counsel may reasonably request in connection with each preliminary prospectus, and all other counsel under the Prospectus, the Registration Statement, the offer and sale terms of the Shares hereunderBasic Documents or to Moody's Investors Service, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseInc. ("Moody's") and Standa▇▇ & ▇▇or's Corporation ("Standard & Poor's").
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the ------------------------------------------- Underwriters hereunder under any Terms Agreement are subject to the following conditions:
(a) The No order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have become effective under been complied with or otherwise satisfied.
(b) Since the Act andrespective dates as of which information is given in the Registration Statement and Prospectus (excluding any Incorporated Documents filed with the Commission after the date of any Terms Agreement), (i) there shall not have been any material adverse change in the financial position or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement or Prospectus (excluding any Incorporated Documents filed with the Commission after the date of any Terms Agreement), and (ii) the Company and its subsidiaries shall not have sustained any material loss or interference with their business, taken as a whole, from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth or contemplated by the Registration Statement or Prospectus (excluding any Incorporated Documents filed with the Commission after the date of any Terms Agreement), if in the judgment of the Representatives any such material adverse change makes it impracticable or inadvisable to consummate the sale and delivery of the purchased Securities by the Underwriters at the initial public offering price or prices.
(c) The representations and warranties of the Company contained herein and in any Terms Agreement shall be true and correct in all material respects on and as of the Closing Date, and the Company shall have performed in all material respects all covenants and agreements herein contained and contained in any Terms Agreement to be performed on its part at or prior to the Closing Date.
(d) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date, signed by any two of the Chairman, president, an Executive Vice President, the Vice President-Finance and the Treasurer of the Company, which shall certify that (i) no stop order suspending the effectiveness of the Registration Statement or prohibiting the qualifications sale of the Shares shall have been issued Purchased Securities is in effect, and no proceedings for that such purpose shall have been instituted are pending before or, to the knowledge of the Company or the Representativessuch officers, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing DateCommission, (iii) the representations and warranties of the Company contained herein and in this any Terms Agreement shall be are true and correct with the same effect as if made in all material respects on and as of such the Closing Date and the Company shall have has performed in all of the obligations material respects all covenants and complied with all of the conditions hereunder agreements herein contained and contained in any Terms Agreement to be performed on its part to be performed or complied with on at or prior to the Closing Date; Date and (iiiii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or and any amendment or supplement thereto, shall on and as of the Closing Date, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have beentherein, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations light of the Company and its subsidiariescircumstances under which they were made, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(de) On each Closing Date you The Representatives shall have received on the Closing Date a signed opinion, dated as of such date, of letter from ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinionCo., dated as of such date, of K&L Gates LLP, counsel to the CompanyClosing Date, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of Representatives and to the other Underwriterseffect set forth in Schedule II hereto.
(f) At The Representatives shall have received on the time Closing Date from ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Senior Vice President - Law and General Counsel of the signing of this Agreement and on each Company, an opinion, dated the Closing Date, you in form satisfactory to the Representatives and to the effect set forth in Schedule III hereto.
(g) The Representatives shall have received a signed letter, dated, respectively, as of each such date, on the Closing Date from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇▇▇▇, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As , opinions, dated the Closing Date, with respect to the Company, the Purchased Securities, the Registration Statement and Prospectus, this Agreement and the Term Agreement, and the form and sufficiency of all proceedings taken in connection with the authorization of the effective date Purchased Securities and the sale and delivery of the Registration Statement, the Common Stock Purchased Securities. Such opinions and proceedings shall be listed satisfactory in all respects to the Representatives, and the Company shall have furnished to counsel for the Underwriters such documents as they may reasonably request for the purpose of enabling them to render such opinions. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely on the NASDAQ Global Market, subject opinions of local counsel as to official notice all matters of issuancelocal law.
(h) FINRA On and after the date of any Terms Agreement, no downgrading shall have confirmed occurred in the ratings accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that it has not raised any objection with respect to term is defined by the fairness and reasonableness Commission for purposes of Rule 436(g)(2) under the underwriting terms and arrangements for this offeringSecurities Act.
(i) At the date of this Any additional conditions precedent contained in any Terms Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy of the respective representations and warranties on the part of the Company Parties and on the date hereof, at the time of purchase, the performance by the Company Parties of their respective obligations hereunder and to the following conditionsadditional conditions precedent:
(a) You shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion and negative assurance letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, U.S. counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, with executed copies for each Underwriter, and in form and substance satisfactory to the Representatives.
(b) You shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion of Walkers, Cayman Islands counsel for the Company, and an opinion of Walkers, British Virgin Islands counsel for MSC Cotai addressed to the Representatives, and dated the Closing Date or the Option Closing Date, as the case may be, with executed copies for each Underwriter, and in form and substance satisfactory to the Representatives.
(c) You shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion of ▇▇▇▇▇▇▇ António Lawyers and Notaries, Macau counsel for the Company, addressed to the Representatives, and dated the Closing Date or the Option Closing Date, as the case may be, with executed copies for each Underwriter, and in form and substance satisfactory to the Representatives.
(d) You shall have received from Ernst & Young, independent registered public accountants, letters dated, respectively, the date of the Prospectus, the Closing Date and the Option Closing Date, as the case may be, and addressed to the Representatives (with executed copies for each Representatives) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days preceding the date hereof.
(e) You shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion and negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives;
(f) You shall have received on the Closing Date or the Option Closing Date, as the case may be an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Advogados & Notários, Macau counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives;
(g) You shall have received on and as of the Closing Date or the Option Closing Date, as the case may be, an opinion of White & Case LLP, counsel for the Depositary, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(h) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which you shall have objected in writing.
(i) The Registration Statement and any registration statement required to be filed, prior to the sale of the Offered ADSs, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act. The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act andat 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).
(j) Prior to and at the Closing Date, time of purchase (i) no stop order suspending with respect to the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no under the Act or proceedings for that purpose shall have been instituted before or, to the knowledge initiated under Section 8(d) or 8(e) of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing DateAct; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus and any all amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations none of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and Pre-Pricing Prospectuses or the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains shall include an untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein 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, together with the Disclosure Package including the then most recent Pre-Pricing Prospectus, 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.
(dk) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the The Company shall have furnished to such counsel such documents you, on the Closing Date and each Option Closing date, as they the case may have reasonably requested for be, a certificate of its Property President or its Property Chief Financial Officer in the purpose of enabling them to pass upon such mattersform attached as Exhibit B hereto.
(el) On each Closing Date you You shall have received the signed opinion, dated Lock-Up Agreements in the form attached as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for Exhibit A hereto from each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) parties listed in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B D attached hereto, and such agreements the Lock-Up Agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Datepurchase. If any additional persons shall become directors or executive officers of the conditions herein provided for in this Section shall not have been fulfilled as Company and acquire or are granted ADSs or any other securities of the date indicatedCompany Parties that are substantially similar to the ADSs, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase such cancellation on or securities prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf end of the Underwriters compliance Company Lock-up Period (as defined below), the Company shall cause each such person, prior to or contemporaneously with any conditions their appointment or election as a director or executive director of the Company, to execute and deliver to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseDesignated Representative a Lock-up Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (STUDIO CITY INTERNATIONAL HOLDINGS LTD)
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters hereunder under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its respective covenants and agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective under the Act andeffective, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued issued, and no proceedings for that purpose shall have been instituted before or threatened or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing Date, The Underwriters shall be satisfied that (i) the representations and warranties Registration Statement as of its Effective Date, all documents incorporated by reference in the Registration Statement as of the Company contained in this Agreement shall be true and correct respective dates of their filing with the same effect as if made on Commission, the Preliminary Prospectus, the Prospectus, and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statementany Issuer-Represented Free Writing Prospectus, each preliminary prospectus and the Prospectus and including any amendments or supplements thereto shall in all material respects conform to thereto, as of their respective dates of filing with the requirements of the Act Commission and the Rules and Regulationsdates on which they were first used, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall did not contain any untrue statement of a material fact or and did not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have beentherein, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading; (ii) since the Effective Date of the Registration Statement, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment; (iii) since the Effective Date of the Registration Statement, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, and since such dates, except in the ordinary course of business, the Company has not entered into any material transaction not referred to in the Registration Statement, the Base Prospectus or the General Disclosure Package; (iv) the Company does not have any material contingent obligations that are not disclosed in the Registration Statement, the Prospectus and the Disclosure Package; (v) there are no pending or, to the Company’s knowledge, threatened legal proceedings to which the Company is a party or of which property of the Company is subject that are material and that are not disclosed in the Registration Statement, the Prospectus and the General Disclosure Package; (vi) there are not any franchises, contracts, leases or other documents that are required to be filed as exhibits to the Registration Statement that have not been filed as required; (vii) the representations and warranties of the Company herein are true and correct in all material respects as of the date hereof, as of the Applicable Time and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be; (viii) the Company has performed, in all material respects, all covenants and agreements required to be performed on or prior to the Closing Date, in all material respects, as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be; and (ix) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act.
(dc) On each or prior to the Closing Date, the legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements and financial information contained therein), shall have been approved at or prior to the Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇by M▇▇▇▇▇▇▇ & Markiles F▇▇▇▇▇▇▇ LLP, counsel for the Underwriters. The Underwriters shall have received from counsel to the several Underwriters, such opinion or opinions with respect to the sufficiency issuance and sale of all corporate proceedings the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents information as they may have reasonably requested for the purpose of enabling request to enable them to pass upon such matters.
(ed) On each the Closing Date you Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the signed opinionUnderwriters, dated as the Closing Date or, if related to the later sale of Option Stock, such later date, of K&L Gates C▇▇▇▇▇ Godward LLP, counsel to the Company, to the effect set forth in form reasonably satisfactory Exhibit A hereto. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel for deems proper, on certificates of responsible officers of the Company and public officials.
(e) On the Closing Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the Underwriters, together with signed or photostatic copies thereof for each dated as of the other UnderwritersClosing Date or, if related to the later sale of Option Stock, such later date, of H▇▇▇▇, P▇▇▇▇▇ & M▇▇▇▇▇▇▇, P.C. regulatory counsel to the Company, to the effect set forth in Exhibit B hereto.
(f) At On the time of the signing of this Agreement and on each Closing Date, you and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received a signed letteran opinion addressed to the Underwriters, dateddated the Closing Date, respectivelyor, as if related to the later sale of each Option Stock, such later date, of M▇▇▇▇▇ & C▇▇▇▇▇▇, LLP, patent counsel to the Company, to the effect set forth in Exhibit C hereto.
(g) On the Closing Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the Underwriters, dated the Closing Date, or, if related to the later sale of Option Stock, such later date, of Bozicevic, Field & F▇▇▇▇▇▇, LLP patent counsel to the Company, to the effect set forth in Exhibit D hereto.
(h) On the Closing Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the Underwriters, dated the Closing Date, or, if related to the later sale of Option Stock, such later date, of G▇▇▇, ▇▇▇▇, W▇▇▇ & Freidenrich, patent counsel to the Company, to the effect set forth in Exhibit E hereto.
(i) You shall have received from PricewaterhouseCoopers LLP a letter addressed to W.▇. ▇▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC+ Co., addressed LLC and the Company’s Board of Directors dated the Closing Date and any later date on which Option Stock is purchased, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Underwriters (with executed copies for each financial statements of the Underwriters) Company and certain financial information contained in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Preliminary Prospectus and the Prospectus, confirming that PricewaterhouseCoopers LLP are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder and based upon the procedures described in their letter delivered to the Underwriters concurrently with the execution of this Agreement (the “Original Letter”), but carried out to a date not more than three business days prior to the Closing Date or such later date on which Option Stock is purchased (i) confirming, to the extent true, that the statements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later date, as the case may be; and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter that are necessary to reflect any changes in the facts described in the Original Letter since the date of the Original Letter or to reflect the availability of more recent financial statements, data or information. The letters shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company which in your sole judgment makes it impractical or inadvisable to proceed with the public offering of the Shares or the purchase of the Option Stock as contemplated by the Prospectus.
(j) The Company shall deliver to you a copy of a letter from PricewaterhouseCoopers LLP, addressed to the Company, stating that their review of the Company’s internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company’s consolidated balance sheets, related consolidated statements of operations, stockholders’ equity, and cash flows as of December 31, 2004 and 2003, and the results of operations and cash flows for each of the three years in the period ended December 31, 2004, did not disclose any weaknesses in internal controls that they considered to be listed material weaknesses.
(k) Prior to the Closing Date, and on any later date on which Option Stock is purchased, you shall have received a certificate, dated the Closing Date or such later date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of the Company stating that the respective signers of said certificate have carefully examined the Registration Statement and the Base Prospectus, and any amendments or supplements thereto, including each Preliminary Prospectus and the Prospectus, and this Agreement, and that, as of the Applicable Time and the Closing Date or the later date on which Option Stock is purchased, as applicable, the statements included in paragraph (b) of this Section 7 are true and correct.
(l) Prior to the Closing Date, and on any later date on which Option Stock is purchased, you shall have received a certificate, dated the Closing Date or such later date, as the case may be, signed by the Secretary of the Company to the effect that, as of the Closing Date or any later date on which Option Stock is purchased, as the case may be, the Secretary certifies as to the accuracy of the Company’s charter and bylaws, the resolutions of the Board of Directors relating to the offering contemplated hereby, the form of stock certificate representing the Shares, and copies of all communications with the Commission related to the offering contemplated by this Agreement; as to the execution and delivery of this Agreement; as to the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; as to the approval of the Shares for listing on the NASDAQ Global Nasdaq National Market; as to the Company’s compliance with all agreements and performance or satisfaction of all conditions required hereunder; as to the consideration received for all outstanding shares of the Company’s Common Stock; and as to such other matters as Underwriters’ counsel may reasonably request.
(m) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) You shall have been furnished evidence in the usual written or electronic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to you, of the qualification referred to in paragraph (f) of Section 6 hereof.
(o) Prior to the Closing Date, the Shares shall have been duly authorized for inclusion on the Nasdaq National Market, subject only to official notice of issuance.
(hp) FINRA The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringarrangements.
(iq) At On or prior to the date of this Agreement, the Representatives W.▇. ▇▇▇▇▇▇▇▇▇ + Co., LLC shall have received an agreement substantially from all directors and certain executive officers and stockholders Lock-Up Agreements, reasonably satisfactory to W.▇. ▇▇▇▇▇▇▇▇▇ + Co., LLC, stating that such person or entity will not, without the prior written consent of W.▇. ▇▇▇▇▇▇▇▇▇ + Co., LLC, sell, offer, contract to sell, transfer the economic risk of ownership in, make any short sale, pledge or otherwise dispose of any other shares of capital stock of the Company or any securities convertible into, or exchangeable or exercisable for or any other rights to purchase or acquire the Company’s capital stock beneficially owned by him or her, for a period of 90 days after the date of the final prospectus relating to the offering, subject to certain exceptions contained in the form Lock-Up Agreements. In case any of Annex A hereto signed the conditions specified in this Section 7 shall not be fulfilled, this Agreement may be terminated by you by giving notice to the Company. Any such termination shall be without liability of the Company to the Underwriters and without liability of the Underwriters to the Company; provided, however, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Company under this Agreement, including all costs and expenses referred to in paragraph (g) of Section 6 hereof; and (ii) if this Agreement is terminated by you because of any refusal or failure on the part of the Company to perform any of its obligations or agreements contained herein, to fulfill any of the conditions herein, or to comply with any provision hereof other than by reason of a default by the persons listed on Schedule B heretoUnderwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and such agreements disbursements of counsel) that shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date have been incurred by them in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisetransactions contemplated hereby.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase the Firm Shares and the Additional Shares, if any, under this Agreement are subject to the satisfaction or waiver of each of the following conditions:
(a) All the representations and warranties of the Company, the Selling Stockholders and Berg ▇▇▇tained in this Agreement shall be true and correct on the Closing Date or the applicable Option Closing Date, as the case may be, with the same force and effect as if made on and as of the Closing Date or the applicable Option Closing Date, as the case may be.
(b) The Registration Statement shall have become effective not later than 5:00 P.M. (and in the case of any registration statement filed pursuant to Rule 462(b) under the Act andAct, not later than 10:00 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 Closing Date or the applicable Option Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted commenced or shall be pending before oror contemplated by the Commission.
(i) Since the date of the latest balance sheet included in the Registration Statement and the Prospectus, to there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the knowledge condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company, (ii) since the date of the latest balance sheet included in the Registration Statement and the Prospectus there shall not have been any change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (i) the representations and warranties of the Company contained from that set forth in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there the Company and its subsidiaries shall have beenno liability or obligation, since the respective dates as of direct or contingent, which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of to the Company and its subsidiaries, taken as a whole, from that set forth other than those reflected in the Registration Statement, each preliminary prospectus Statement and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and on the Prospectus, no action, suit Closing Date or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each applicable Option Closing Date, a certificate of as the principal executive officer and the principal financial or accounting officer of the Companycase may be, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a certificate dated the Closing Date, signed opinion, dated as of such date, of by Timo▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ Davi▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to their respective capacities as the several Underwriters, with respect to the sufficiency President and Chief Operating Officer and Senior Vice President and Chief Financial Officer of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.confirming the
Appears in 1 contract
Sources: Underwriting Agreement (Berg Electronics Corp /De/)
Conditions of the Underwriters’ Obligations. The several obligations of the ------------------------------------------- Underwriters hereunder to purchase Shares at the Closing Time or on the Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company in all material respects on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance by the Company of its obligations hereunder in all material respects and to the satisfaction of the following conditionsfurther conditions at the Closing Time or on the Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Cozen & ▇'▇▇▇▇▇▇, a professional corporation, counsel for the Company and its Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Date of Delivery and in form and substance satisfactory to Jenkens & ▇▇▇▇▇▇▇▇▇, a Professional Corporation, counsel for the Underwriters, stating that:
(i) the Company has an authorized capitalization as set forth in the Prospectus under the caption "Capitalization"; the outstanding shares of capital stock of the Company and its Subsidiaries have been duly and validly authorized and issued and are fully paid and non-assessable, and all of the outstanding shares of capital stock of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of its Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options;
(ii) the Company and its Subsidiaries (all of which are named in an exhibit to the Registration Statement) each has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of its respective jurisdiction of incorporation or organization with full corporate or limited liability company power and authority to own its respective properties and to conduct its respective business as described in the Registration Statement shall and Prospectus and, in the case of the Company, to execute and deliver this Agreement and to consummate the transactions described in this Agreement;
(iii) the Company and its Subsidiaries are duly qualified or licensed by each jurisdiction in which they conduct their respective businesses and in which the failure, individually or in the aggregate, to be so licensed could have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, and the Company and its Subsidiaries are duly qualified, and are in good standing, in each jurisdiction in which they own or lease real property or maintain an office and in which such qualification is necessary except where the failure to be so qualified and in good standing would not have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole; except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary's capital stock or from repaying to the Company or any other Subsidiary, any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary's property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
(iv) the Company and its Subsidiaries are in compliance in all material respects with all applicable laws, orders, rules, regulations and orders, including those relating to transactions with affiliates;
(v) neither the Company nor any of its Subsidiaries is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), any license, indenture, mortgage, deed of trust, loan or credit agreement or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound or affected or under any law, regulation or rule or any decree, judgment or order applicable to the Company or any of its Subsidiaries, except such breaches or defaults which would not have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole;
(vi) the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), (i) any provisions of the articles of incorporation, charter or by-laws of the Company or any Subsidiary, (ii) any provision of any license, indenture, mortgage, deed of trust, loan, credit or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets may be bound or affected, (iii) any law or regulation binding upon or applicable to the Company or any Subsidiary or any of their respective properties or assets, or (iv) any decree, judgment or order applicable to the Company or any Subsidiary; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of the Company or its Subsidiaries;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except that enforceability of the indemnification and contribution provisions set forth in Section 9 of this Agreement may be limited by the federal or state securities laws of the United States or public policy underlying such laws;
(viii) no approval, authorization, consent or order of or filing with any federal or state governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement, the consummation of the transaction contemplated hereby, and the sale and delivery of the Shares by the Company as contemplated hereby, other than such as have been obtained or made under the Securities Act and the Securities Act Regulations, and except that such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or any approval of the underwriting terms and arrangements by the National Association of Securities Dealers, Inc.;
(ix) each of the Company and its Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required to conduct their respective businesses, as described in the Prospectus; to such counsel's knowledge neither the Company nor any Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or decree, order or judgment applicable to the Company or any of its Subsidiaries;
(x) the Shares have been duly authorized and when the Shares have been issued and duly delivered against payment therefor as contemplated by this Agreement, the Shares will be validly issued, fully paid and nonassessable, and the Underwriters will acquire the good and marketable title to the Shares, free and clear of any pledge, lien, encumbrance, security interest, or other claim;
(xi) the issuance and sale of the Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, under the articles of incorporation, charter or by-laws of the Company, or under any agreement to which the Company or any of its Subsidiaries is a party or, to such counsel's knowledge, otherwise;
(xii) there are no persons with registration or other similar rights to have any equity securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act, except for those registration or similar rights which have been waived with respect to the offering contemplated by this Agreement;
(xiii) the Shares conform in all material respects to the descriptions thereof contained in the Registration Statement and Prospectus;
(xiv) the form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the articles of incorporation and by-laws of the Company and the requirements of the Nasdaq National Market;
(xv) the Registration Statement has become effective under the Securities Act and, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceedings with respect thereto have been commenced or the qualifications threatened;
(xvi) as of the Shares shall have been issued effective date of the Registration Statement, the Registration Statement and no proceedings for that purpose shall have been instituted before or, the Prospectus (except as to the knowledge financial statements and other financial and statistical data contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations;
(xvii) the statements under the captions "Risk Factors," "Capitalization," "Business - Government Regulation," "Description of Capital Stock," and "Shares Eligible for Future Sale," in the Registration Statement and the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries thereof in all material respects;
(xviii) to such counsel's knowledge, there are no actions, suits or proceedings, inquiries, or investigations pending or threatened against the Company or any of its Subsidiaries or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which are required to be described in the Prospectus but are not so described;
(xix) there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement or required to be described or summarized in the Prospectus which have not been so filed, summarized or described, and all such summaries and descriptions, in all material respects, fairly and accurately set forth the material provisions of such contracts and documents;
(xx) the Company and each Subsidiary owns or possesses adequate license or other rights to use all patents, trademarks, service marks, trade names, copyrights, software and design licenses, trade secrets, manufacturing processes, other intangible property rights and know-how (collectively "Intangibles") necessary to entitle the Company and each Subsidiary to conduct its business as described in the Prospectus, and neither the Company, nor any Subsidiary, has received notice of infringement of or conflict with (and knows of no such infringement of or conflict with) asserted rights of others with respect to any Intangibles which could materially and adversely affect the business, prospects, properties, assets, results of operations or condition (financial or otherwise) of the Company or any Subsidiary;
(xxi) each of the Company, and the Subsidiaries has filed on a timely basis all necessary federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof and have paid all taxes shown as due thereon; and no tax deficiency has been asserted against any such entity, nor does any such entity know of any tax deficiency which is likely to be asserted against any such entity which if determined adversely to any such entity, could materially adversely affect the business, prospects, properties, assets, results of operations or condition (financial or otherwise) of any such entity, respectively. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, independent public accountants of the Company, representatives of the Representatives, shall be contemplated by at which the Commission contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or any state securities fairness of the statements contained in the Registration Statement or “Blue Sky” commissioner or authority.
Prospectus (b) At each Closing Dateexcept as and to the extent stated in subparagraphs (xiii), (ixvii), and (xix) 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 such Closing Date and the Company shall above), they have performed all of the obligations and complied with all of the conditions hereunder on its part no reason to be performed or complied with on or prior to the Closing Date; (ii) believe that the Registration Statement, each preliminary prospectus and the Preliminary Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, as of their respective effective or any amendment issue date, and as of the date of such counsel's opinion, contained or supplement thereto, shall contain any contains an untrue statement of a material fact or omit omitted or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have beentherein, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations light of the Company circumstances under which they were made, not misleading (it being understood that, in each case, such counsel need express no view with respect to the financial statements and its subsidiaries, taken as a whole, from that set forth other financial and statistical data included in the Registration Statement, each preliminary prospectus and the Preliminary Prospectus or Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and ).
(ivb) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you The Representatives shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of from ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representatives, in form and substance satisfactory to the Representatives, relating to the financial statements, including any pro forma financial statements, of the Company and its Subsidiaries, and such date, from other matters customarily covered by comfort letters issued in connection with registered public offerings.
(c) The Representatives shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Jenkens & ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇, a Professional Corporation, dated the Closing Time or such Date of Delivery, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness Representatives and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel satisfactory to the several UnderwritersRepresentatives.
(d) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(e) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and at the time of signing this Agreement and on the Closing Date, you and no proceedings for such counsel purpose shall have received each been initiated or threatened, by the Commission, and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale no suspension of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Innovative Solutions & Support Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy, as of the date hereof and at each Closing Date (as if made at such Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall have become effective under the Act and, at the Closing Date, remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the qualifications use of the Shares Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted before orinitiated or threatened; any request of the Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the knowledge satisfaction of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityRepresentative.
(b) At The Underwriters shall not have advised the Company that (i) the Registration Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the opinion of counsel for the Underwriters, is material or omits to state a material fact which, in the opinion of such counsel, is required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an untrue statement of fact which, in the Underwriters’ opinion, 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 necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(c) Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Time of Sale Disclosure Package and the Prospectus, neither the Company nor its subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (other than the grant of equity incentives to non-officer employees or consultants in accordance with the Company’s stock option and equity incentive plans or a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company or its subsidiaries (other than the grant of equity incentives to non-officer employees and consultants in accordance with the Company’s stock option and equity incentive plans), or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), that, in the sole judgment of the Representative, makes it impractical or inadvisable to offer or deliver the Shares on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.
(d) On each Closing Date, there shall have been furnished to the Underwriters the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, dated such Closing Date and addressed to the Underwriters in substantially the form attached hereto as Exhibit B.
(e) On each Closing Date, there shall have been furnished to the Underwriters such opinion or opinions from ▇▇▇▇▇▇, Hall & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Closing Date and addressed to the Underwriters, with respect to such matters as the Underwriters may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(f) On the date hereof and on each Closing Date, the Underwriters shall have received a letter of Ernst & Young LLP, dated such date and addressed to the Underwriters, (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to Underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.
(g) On each Closing Date, there shall have been furnished to the Underwriters a certificate, dated such Closing Date and addressed to the Underwriters, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement shall be are true and correct with the same effect as if made on at and as of such Closing Date and the Company shall have performed all of the obligations and has complied with all of the agreements and satisfied all the conditions hereunder on its part to be performed or complied with on satisfied at or prior to the such Closing Date; ;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Shares for offering or sale, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement, each preliminary prospectus the Time of Sale Disclosure Package and the Prospectus Prospectus, and any amendments thereof or supplements thereto, and (A) each part of the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulationscontain, and neither contained when such part of the Registration Statement, or any preliminary prospectus or amendment thereof, became effective, all statements and information required to be included therein, the ProspectusRegistration Statement, or any amendment thereof, does not contain and did not contain when such part of the Registration Statement, or supplement theretoany amendment thereof, shall contain became effective, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus, as amended or supplemented, does not include and did not include as of its date or the time of first use within the meaning of the Rules and Regulations, any untrue statement of material fact or omit to state and did not omit to state as of its date or the time of first use within the meaning of the Rules and Regulations a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (iiiB) neither (1) the Time of Sale Disclosure Package nor (2) any individual Issuer Limited-Use Free Writing Prospectus, when considered together with the Time of Sale Disclosure Package, include, nor included as of the Time of Sale any untrue statement of a material fact or omits, or omitted as of the Time of Sale, to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) since the Time of Sale there shall have beenhas occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, since (D) subsequent to the respective dates as of which information is given, no material adverse change given in the condition (financial or otherwise), business, prospects or results Time of operations of the Company Sale Disclosure Package and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have subsidiaries has incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactiontransactions, contract or agreement not in the ordinary course of business business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Time of Sale Disclosure Package and in the Prospectus, there has not been any change in the capital stock (other than as referred to or contemplated a change in the Registration Statement; number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company, or its subsidiaries, or any other Material Adverse Change or any development which could reasonably be expected to result in any Material Adverse Change (whether or not arising in the ordinary course of business), and (ivE) except as set forth stated in each preliminary prospectus the Time of Sale Disclosure Package and in the Prospectus, no there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries subsidiaries is a party before or by any commissioncourt, board Governmental Agency or administrative agency in the United States or elsewhereany arbitrator, wherein an unfavorable decision, ruling or finding which could reasonably be expected, individually or in the aggregate, expected to result in a any Material Adverse Effect; and you Change.
(h) The Underwriters shall have received at all of the Lock-Up Agreements referenced in Section 4, and each such Lock-Up Agreement shall be in full force and effect on each Closing Date, .
(i) The Underwriters shall have received on each Closing Date a certificate of the principal executive officer and the principal financial or accounting officer Secretary of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(cj) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the The Company shall have furnished to the Underwriters and counsel for the Underwriters such counsel such documents additional documents, certificates and evidence as they may have reasonably requested for the purpose of enabling them to pass upon such mattersrequested.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(hk) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringarrangements.
(il) At The Shares shall have been approved for listing on the date Nasdaq Capital Market, subject to official notice of this Agreement, the Representatives issuance. The Company shall have received an agreement substantially in the form conditional approval of Annex A hereto signed by the persons listed on Schedule B hereto, Toronto Stock Exchange for the issuance and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale listing of the Shares shall (subject only to customary post-closing document delivery requirements). All such opinions, certificates, letters and other documents will be reasonably in compliance with the provisions hereof only if they are satisfactory in form and substance to you the Representative and counsel to for the several Underwriters, and at . The Company will furnish the time of signing this Agreement and on the Closing Date, you and Underwriters with such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company conformed copies of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of opinions, certificates, letters and other documents as the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseshall reasonably request.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective under the Act and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (i) the accuracy of the representations and warranties of the Company and the Operating Partnership herein contained in this Agreement shall be true and correct with the same effect as if made on and all material respects, as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to date hereof, the Closing DateTime and each Date of Delivery; (ii) the Registration Statement, each preliminary prospectus and accuracy of the Prospectus and statements of the Company's officers made in any amendments or supplements thereto shall certificate pursuant to the provisions hereof in all material respects conform to the requirements respects, as of the Act and the Rules and Regulationsdate of such certificate, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of performance by the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date Operating Partnership of the Registration Statement, and neither the Company nor any all of its Subsidiaries shall have incurred any covenants and other obligations hereunder in all material liabilities or material obligationsrespects, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit following further conditions:
(a) No amendment or proceeding at law or in equity shall be pending or, supplement to the Company’ knowledge, threatened against the Company Registration Statement or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you Prospectus shall have received at each been filed to which the Representatives shall have objected in writing.
(b) At the Closing DateTime, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company Shares shall have been met as of such dateapproved for inclusion on the Nasdaq National Market.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration StatementTime, the Common Stock NASD shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringhereunder.
(id) At the date Closing Time and prior to each Date of this Delivery, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission nor shall any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus have been issued by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred; and the Registration Statement and all amendments thereto, or modifications thereof, if any, and the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, shall not contain an untrue statement of 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.
(e) At the Closing Time, the Company and the Manager shall have executed and delivered the Management Agreement, WFSG, the Manager and the Company shall have executed and delivered the Services Agreement, the Company and WCC shall have executed and delivered the WCC Servicing Agreement, the Company and Wilshire UK shall have executed and delivered the European Servicing Agreement, the Company and Small Cap shall have executed and delivered the Partnership Agreement, each of the Company and the Operating Partnership and the other party or parties thereto shall have executed and delivered the Acquisition Agreements and the Company, WFSG and/or the Manager, as the case may be, shall have executed and delivered the Other Transaction Documents each (including the Management Agreement, the Servicing Agreements, the Partnership Agreement, the Acquisition Agreements, and certain of the Other Transaction Documents) in substantially the form filed as an exhibit to the Registration Statement.
(f) At the Closing Time, the Representatives shall have received an agreement substantially in received:
(i) the form opinion, dated as of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with Time, of Proskauer Rose LLP, counsel for the sale of the Shares shall be reasonably satisfactory Company, in form and substance reasonably satisfactory to you counsel for the Underwriters, to the effect that:
(A) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Act, with full partnership power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus, to execute and deliver this Agreement, the Management Agreement and the Acquisition Agreements and to consummate the transactions described in each such agreement.
(B) WFSG is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware with full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus, to execute and deliver this Agreement, the Services Agreement and the Other Transaction Documents to which it is a party and to consummate the transactions described in each such agreement.
(C) the Manager is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to conduct its business as described in the Registration Statement and the Prospectus, to execute and deliver the Management Agreement, the Services Agreement and the Other Transaction Documents to which it is a party and to consummate the transactions described in each such agreement. All of the issued and outstanding capital stock of the Manager is held of record and, to the knowledge of such counsel, beneficially, by WFSG.
(D) the Company, the Operating Partnership and the Manager are duly qualified or licensed by and in good standing in each jurisdiction in which they conduct their respective businesses or own or lease property and in such jurisdictions as counsel to the several UnderwritersUnderwriters shall reasonably request, and at in which the time of signing this Agreement and failure, individually or in the aggregate, to be so licensed or qualified could have a material adverse effect on the Closing Dateoperations, you business, prospects or condition (financial and such counsel shall have received each other) of the Company and every additional documentthe Operating Partnership, lettertaken as a whole, opinionor the Manager, certificate or other item dated and executed in a manner reasonably satisfactory as the case may be; and, to you and the best of such counsel's knowledge, each of the Company, the Operating Partnership and the Manager is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to so comply would not have a material adverse effect on the operations, business, prospects and condition (financial and other) of the Company and the Operating Partnership, taken as a whole, or the Manager, as you or such counsel the case may reasonably request be.
(E) except as disclosed in connection with each preliminary prospectus, the Prospectus, the Registration StatementOperating Partnership is not prohibited or restricted by its certificate of limited partnership or partnership agreement, or, to the offer knowledge of such counsel, otherwise, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to the Operating Partnership's interests or from paying the Company, any loans or advances to the Operating Partnership from the Company, or from transferring any such Operating Partnership's property or assets to the Company.
(F) the outstanding interests or the outstanding shares of capital stock, as the case may be, of the Operating Partnership and the Manager, have been duly and validly authorized and will be validly issued and fully paid and non-assessable (except as provided under the General Corporation Law of the State of Delaware and the Delaware Act); immediately following the Closing, all of the authorized and validly issued interests in the Operating Partnership will be directly held of record and, to the knowledge of such counsel, owned beneficially by the Company or Small Cap; except as disclosed in the Prospectus, there are no authorized and validly issued (1) securities or obligations of the Company or the Operating Partnership convertible into or exchangeable for any shares of capital stock of the Company or interests in the Operating Partnership or (2) warrants, rights or options to subscribe for or purchase from the Company or the Operating Partnership any such shares of beneficial interest, capital stock, interests or any such convertible or exchangeable securities or obligations; except as set forth in the Prospectus or contemplated by this Agreement, there are no outstanding obligations of the Company or the Operating Partnership to issue any shares of capital stock or interests, any such convertible or exchangeable securities or obligation, or any such rights or options.
(G) the issuance and sale of the Shares hereunderby the Company are not subject to preemptive or other similar rights arising under any agreement known to such counsel to which the Company is a party or, to such counsel's knowledge, otherwise.
(H) this Agreement has been duly authorized, executed and delivered by the Operating Partnership and WFSG.
(I) the Management Agreement has been duly authorized, executed and delivered by the Manager and constitutes the valid and binding agreement of each of the Company and the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, whether considered in a proceeding at law or in equity; such counsel may assume due authorization, execution and delivery of the Management Agreement by the Company.
(J) the Services Agreement has been duly authorized, executed and delivered by WFSG and the Manager and constitutes the valid and binding agreement of each of the Company, WFSG and the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, whether considered in a proceeding at law or in equity; such counsel may assume due authorization, execution and delivery of the Services Agreement by the Company.
(K) the WCC Servicing Agreement constitutes the valid and binding agreement of the Company and WCC, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, whether considered in a proceeding at law or in equity; such counsel may assume due authorization, execution and delivery of the WCC Servicing Agreement by the Company and WCC.
(L) the European Servicing Agreement constitutes the valid and binding agreement of the Company and Wilshire UK, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, whether considered in a proceeding at law or in equity; such counsel may assume due authorization, execution and delivery of the European Servicing Agreement by the Company and Wilshire UK.
(M) The Partnership Agreement constitutes the valid and binding agreement of the Company and Small Cap, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, whether considered in a proceeding at law or in equity; such counsel may assume due authorization, execution and delivery of the Partnership Agreement by the Company and Small Cap.
(N) each of the Acquisition Agreements has been duly authorized, executed and delivered by the Operating Partnership.
(O) each of the Other Transaction Documents to which WFSG and/or the Manager is a party has been duly authorized, executed and delivered by WFSG and/or the Manager, as the case may be, and each of the Other Transaction Documents constitutes the valid and binding agreement of the Company, WFSG and/or the Manager, as the case may be, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, whether considered in a proceeding at law or in equity; such counsel may assume the due authorization, execution and delivery of the Other Transaction Documents to which the Company is a party by the Company.
(P) the Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or proceedings at therefor initiated or threatened by the Closing Date. If Commission.
(Q) the Registration Statement and the Prospectus, as of their respective effective or issue dates, comply as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations; it being understood, however, that no opinion need be rendered with respect to the financial statements, schedules and other financial and statistical data included in the Registration Statement or the Prospectus or state securities or blue sky laws.
(R) to such counsel's knowledge, no authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the execution, delivery and performance of the Management Agreement, the Servicing Agreements, the Partnership Agreement, the Acquisition Agreements or the Other Transaction Documents or the consummation by the Company, the Operating Partnership, WFSG or the Manager, as the case may be, of the transactions contemplated hereby and thereby, the sale and delivery of Shares by the Company as contemplated hereby other than such as have been obtained or made under the Securities Act; it being understood, however, that no opinion need be rendered with respect to state securities or blue sky laws or approval of underwriting terms by the NASD.
(S) the execution, delivery and performance of this Agreement by the Company, the Operating Partnership and WFSG, the execution, delivery and performance of the Management Agreement by the Company and the Manager, the execution, delivery and performance of the Services Agreement by WFSG, the Manager and the Company, the execution, delivery and performance of the WCC Servicing Agreement by the Company, the execution, delivery and performance of the UK Servicing Agreement by the Company, the execution and delivery of the Partnership Agreement by the Company, the execution and delivery of any of the conditions Acquisition Agreements by the Operating Partnership and the Company, and the execution and delivery of the Other Transaction Documents by the Company, WFSG and/or the Manager, and the consummation of the transactions contemplated herein provided for and therein, and compliance by the Company, the Operating Partnership, the Manager or WFSG, with its obligations hereunder and thereunder will not conflict with or constitute a breach of, or default under or result in this Section shall the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership, the Manager or WFSG, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel to which the Company, the Operating Partnership, the Manager or WFSG, is a party or by which either of them may be bound or to which any of the property or assets of the Company, the Operating Partnership, the Manager or WFSG, is subject, nor will such action result in violation of the provisions of the charter or bylaws of the Manager or WFSG, the provisions of the certificate of limited partnership or partnership agreement of the Operating Partnership, or any law, administrative regulation or court decree known to such counsel.
(T) to such counsel's knowledge, except as disclosed on the Registration Statement and the Prospectus, none of the Company, the Operating Partnership or the Manager is in material breach of, or in material default under (nor has any event occurred which with notice, lapse of time, or both would constitute a material breach of, or material default under) its respective charter, bylaws, certificate of limited partnership or partnership agreement, as the case may be, or in the performance or observation of any obligation, agreement, covenant, or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or any other agreement or instrument known to such counsel to which the Company, the Operating Partnership or the Manager is a party or by which any of them or their respective properties may be bound or affected, except such breaches or defaults which would not have been fulfilled as a material adverse effect on the assets, operations, business, prospects or condition (financial or otherwise) of the date indicatedCompany and the Operating Partnership, all obligations of taken as a whole, or the several Underwriters under this Agreement Manager, as the case may be cancelled by the Representatives by notifying be; such counsel may assume that the Company of such cancellation on is not in material breach of, or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.ma
Appears in 1 contract
Sources: Underwriting Agreement (Wilshire Real Estate Investment Trust Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development involving a prospective change, in 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Seller, from that set forth in the Servicer, UNIPAC or InTuition not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as a Seller, the Servicer, UNIPAC or InTuition by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, the Seller, the Servicer, UNIPAC or InTuition (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On You shall have received an opinion addressed to you of Kutak Rock, in its capaci▇▇ ▇▇ ▇▇▇▇sel to the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each Closing Date of the Sale Agreement, Servicing Agreement, Indenture, Auction Agency Agreement, Broker-Dealer Agreement and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received a signed opinionan opinion addressed to you of Kutak Rock, dated as of such date, of in its capaci▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested sel for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably and substance satisfactory to counsel for the Underwritersyou and your counsel, together with signed or photostatic copies thereof for each of the concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel Seller to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Union Financial Services I Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters to purchase and pay for the Securities which the Underwriters have agreed to purchase hereunder are subject to: the accuracy, as of the date hereof and as of the Closing Dates of all of the representations and warranties of the Company and the Selling Security Holders contained in this Agreement; the Company's and the Selling Security Holders' compliance with, or performance of, all of its covenants, undertakings and agreements contained in this Agreement that are required to be complied with or performed on or prior to each of the Closing Dates and to the following additional conditions:
(a) The Registration Statement shall have become effective under the Act and, at On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or be pending or, to the knowledge of the Company, shall be threatened by the Commission; any request for additional information on the part of the Commission (to be included in the Registration Statement or the qualifications Prospectus or otherwise) shall have been complied with to the satisfaction of the Shares Commission; and neither the Registration Statement nor any amendment thereto shall have been filed to which counsel to the Underwriters shall have reasonably objected, in writing.
(b) The Representative shall not have disclosed in writing to the Company that the Registration Statement or Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel to 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) Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or other such cause, of such character as materially adversely affects its business or property, whether or not such loss is covered by insurance.
(d) Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company (or the Selling Security Holders with respect to the Optional Common Stock), and there shall be no proceeding instituted or threatened against the Company (or the Selling Security Holders with respect to the Optional Common Stock) before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, licenses, permits, operations or financial condition or income of the Company or the right of the Selling Security Holders to deliver unencumbered title to the Underwriters for the Optional Common Stock.
(e) Except as contemplated herein or as set forth in the Registration Statement and Prospectus, during the period subsequent to the Effective Date and prior to the Closing Date, (A) the Company shall have conducted its business in the usual and ordinary manner as the same was being conducted on the date of the filing of the initial Registration Statement and (B) except in the ordinary course of its business, the Company shall not have incurred any material liabilities or obligations (direct or contingent), or disposed of any of its assets, or entered into any material transaction, and (C) the Company shall not have suffered or experienced any material adverse change in its business, affairs or in its condition, financial or otherwise. On the Closing Date, the capital stock and surplus accounts of the Company shall be substantially as great as at its last financial report without considering the proceeds from the sale of the Securities except to the extent that any decrease is disclosed in or contemplated by the Prospectus.
(f) The authorization of the Securities, the Registration Statement, the Prospectus and all corporate proceedings and other legal matters incident thereto and to this Agreement, shall be reasonably satisfactory in all respects to counsel to the Underwriters.
(g) The Company shall have furnished to the Representative the opinions, dated the Closing Date, and Additional Closing Date(s), addressed to you, of its counsel that:
(i) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware with full corporate power and authority to own and operate its properties and to carry on its business as set forth in the Registration Statement and Prospectus; it has authorized and outstanding capital as set forth in the Registration Statement and Prospectus; and the Company is duly licensed or qualified as a foreign corporation in all jurisdictions in which by reason of maintaining an office in such jurisdiction or by owning or leasing real property in such jurisdiction it is required to be so licensed or qualified except where failure to be so qualified or licensed would have no material adverse effect.
(ii) All of the outstanding Shares of Common Stock are duly and validly issued and outstanding, fully paid, and non-assessable, and do not have any, and were not issued in violation of any, preemptive rights. The Company will have duly authorized, reserved and set aside shares of Common Stock issuable upon exercise of the outstanding options or warrants and when issued in accordance with such terms contained in the Prospectus, will be duly and validly authorized and issued, fully paid and non-assessable.
(iii) All of the Securities of the Company to which this Agreement relates conform to the statements relating to them that are contained in the Registration Statement and Prospectus (excluding financial statements).
(iv) The Underwriters against payment therefor, will receive good and marketable title to the Securities purchased by them from the Company and the Selling Security Holders in accordance with the terms and provisions of this Agreement.
(v) To the best of the knowledge of such counsel, except as set forth in the Prospectus, there are no outstanding options, warrants, or other rights, providing for the issuance of, and, no commitments, plans or arrangements to issue, any shares of any class of capital stock of the Company, or any security convertible into, or exchangeable for, any shares of any class of capital stock of the Company.
(vi) To the best of such counsel's knowledge, no consents, approvals, authorizations or orders of agencies, officers or other regulatory authorities are necessary for the valid authorization, issuance or sale of the Securities hereunder, except such as may be required under the Act or state securities or blue sky laws.
(vii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose shall have been instituted before or are pending or contemplated under the Act, and the Registration Statement and Prospectus, and each amendment thereof and supplement thereto, comply as to form in all material respects with the requirements of the Act and the Rules and Regulations (except that no opinion need be expressed as to financial statements and financial data contained in the Registration Statement or Prospectus), and in the course of the preparation of the Registration Statement, nothing has come to the attention of said counsel to cause them to believe that 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 a material fact required to be stated therein or necessary to make the statements therein not misleading; and such counsel is familiar with all contracts referred to in the Registration Statement or in the Prospectus and such contracts are sufficiently summarized or disclosed therein, or filed as exhibits thereto, as required, and such counsel does not know of any other contracts required to be summarized or disclosed or filed; and such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company is a party, or in which property of the Company is the subject, of a character required to be disclosed in the Registration Statement or the Prospectus which are not disclosed and properly described therein.
(viii) The Representative's Warrants to be issued to the Representative or its permitted designees hereunder will be, when issued against payment therefor duly and validly authorized and executed by the Company and will constitute valid and binding obligations of the Company, legally enforceable in accordance with their terms (except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally), and the Company will have duly authorized, reserved and set aside the shares of its Common Stock issuable upon exercise of the Representative's Warrants and such stock, when issued and paid for upon exercise of the Representative's Warrants in accordance with the provisions thereof, will be duly and validly authorized and issued, fully-paid and non-assessable.
(ix) The Company holds by valid lease, its properties as shown in the Prospectus, and is in all material respects complying with all laws, ordinances and regulations applicable thereto.
(x) This Agreement has been duly authorized and executed by the Company and the Selling Security Holders and is a valid and binding agreement of the Company and the Selling Security Holders enforceable in accordance with its terms subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors rights generally and except that no opinion need be given with regard to the enforceability of Section 9 hereof or the availability of equitable relief.
(xi) To the best knowledge of such counsel: (a) no default exists, and no event has occurred which, with notice or lapse of time, or both, would constitute a default in the due performance and observance of any material term, covenant or condition by the Company or the Selling Security Holders, of any indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company or the Selling Security Holders are a party or by which it or its business or its properties may be bound or affected, except where such default would not have a material adverse effect on the business of the Company and except as disclosed in the Prospectus; (b) the Selling Security Holders have full power and legal authority to sell the Optional Common Stock to the Underwriters free and clear of all liens and encumbrances; (c) the Company has full power and lawful authority to authorize, issue and sell the Firm Common Stock on the terms and conditions set forth herein and in the Registration Statement and in the Prospectus; (d) no consent, approval, authorization or other order of any regulatory authority is required for such authorization, issue or sale, except as may be required under the Act or state securities laws, clearance with the NASD and such other consent, approval, authorization or order as has been obtained and is in full force and effect; and (e) the execution and delivery of this Agreement, the consummation of the transactions herein contemplated, and compliance with the terms hereof will not conflict with, or constitute a default under, any material indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company and the Selling Security Holders are now a party or by which it or its business or its properties may be bound or affected, the Certificate of Incorporation and any amendments thereto, the by-laws of the Company, or any order, rule or regulation, writ, injunction or decree of any government, governmental instrumentality, or court, domestic or foreign, having jurisdiction over the Company or the Selling Security Holders or its business or properties.
(xii) Except as disclosed in the Registration Statement and Prospectus, to the best knowledge of such counsel, there are no material actions, suits or proceedings at law or in equity of a material nature pending, or to such counsel's knowledge, threatened against the Company or the Selling Security Holders which are not adequately covered by insurance and there are no proceedings pending or, to the knowledge of such counsel, threatened against the Company or the RepresentativesSelling Security Holder before or by any federal or state Commission, regulatory body, or administrative agency or other governmental body, wherein an unfavorable ruling, decision or finding would materially and adversely affect the business, operation or condition (financial or otherwise) of the Company or the ability of Selling Security Holders to deliver unencumbered title of the Optional Common Stock to the Underwriters, which are not disclosed in the Prospectus. Such opinion shall be also cover such other matters incident to the transactions contemplated by this Agreement as the Commission Representative shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any officer of the Company or any state securities or “Blue Sky” commissioner or authoritypublic officials as to matters of fact.
(bh) At each The Company shall have furnished to the Representative certificates of the President or Chairman of the Board and the Secretary of the Company, dated as of the Closing Date, and Additional Closing Date(s), to the effect that:
(i) Each of the representations and warranties of the Company contained in this Agreement shall be Section 2 hereof are true and correct with the same effect as if made on in all material respects at and as of such Closing Date Date, and the Company shall have has performed all of the obligations and or complied with all of its agreements, covenants and undertakings contained in this Agreement and has performed or satisfied all the conditions hereunder contained in this Agreement on its part to be performed or complied with on or prior to satisfied at the Closing Date; ;
(ii) The Registration Statement has become effective and no order suspending the effectiveness of the Registration StatementStatement has been issued, and, to the best of the knowledge of the respective signers, no proceeding for that purpose has been initiated or is threatened by the Commission;
(iii) The respective signers have each preliminary prospectus carefully examined the Registration Statement and the Prospectus and any amendments or and supplements thereto, and to the best of their knowledge the Registration Statement and the Prospectus and any amendments and supplements thereto shall and all statements contained therein are true and correct in all material respects conform to the requirements of the Act and the Rules and Regulationsrespects, and neither the Registration Statement, any preliminary prospectus or Statement nor the Prospectus, or Prospectus nor any amendment or supplement thereto, shall contain thereto includes any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have beenmisleading and, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus which has not been so set forth except changes which the Registration Statement and neither Prospectus indicate might occur.
(iv) Except as set forth or contemplated in the Registration Statement and Prospectus, since the respective dates as of which, or periods for which, information is given in the Registration Statement and Prospectus and prior to the date of such certificate (A) there has not been any material adverse change, financial or otherwise, in the business, business prospects, earnings, general affairs or condition (financial or otherwise), of the Company nor any (in each case whether or not arising in the ordinary course of its Subsidiaries shall have business), and (B) the Company has not incurred any material liabilities or material obligationsliabilities, direct or contingent, or entered into any material transactiontransactions, contract or agreement not otherwise than in the ordinary course of business other than as referred to or contemplated in the Registration Statement; Statement or Prospectus and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in changes which the Registration Statement, Statement and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringindicate might occur.
(i) At The Company and the date of this Agreement, the Representatives Selling Security Holders shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel furnished to the several Underwriters, and at the time of signing this Agreement and Representative on the Closing Date, you and such counsel shall have received each and every other certificates, additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counselthose specifically mentioned herein, as you or such counsel the Representative may have reasonably request requested, as to: the accuracy and completeness of any statement in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Reg
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before instituted, threatened or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, which in the opinion of the Representative, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth or (iii) any event or development which makes any statement made in the Registration Statement, each preliminary prospectus and Disclosure Package or Prospectus untrue or which, in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth change in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company Disclosure Package or any of its Subsidiaries before or by any commission, board or administrative agency Prospectus in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, Disclosure Package or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Eligible Lender Trust Agreements, the Indenture, the Trust Agreement, and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning “true sale,” “non-consolidation” and “first perfected security interest” and certain other issues with respect to the transfer of the Trust Student Loans from the SLC to SLC Receivables, SLC Receivables to the Company and from the Company to the Indenture Trustee.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated as of the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Initial FWP and the Prospectus under the headings “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA Considerations”, to the extent such datestatements summarize the material tax consequences and the material consequences under ERISA, respectively, of the purchase, beneficial ownership and disposition of the Notes to holders thereof described therein, are correct in all material respects.
(e) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as Underwriters’ Counsel, dated the Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion and disclosure letters addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Registration Statement, the Disclosure Package and the Prospectus certain matters arising under the Trust Indenture Act and the ▇▇▇▇ ▇▇▇.
(h) You shall have received opinions addressed to you of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or other counsel satisfactory to you in their capacity as counsel to SLC and SLC Receivables, each dated the Closing Date and satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPFinger, P.A., in its capacity as counsel to the several UnderwritersOwner Trustee, with respect dated the Closing Date and in form and substance satisfactory to the sufficiency of all corporate proceedings you and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersyour counsel.
(ej) On each Closing Date you You shall have received the signed opinion, dated as an opinion addressed to you of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇▇▇▇▇ LLP, addressed in its capacity as counsel to the Underwriters (with executed copies for each of Indenture Trustee, dated the Underwriters) Closing Date and in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statementand substance satisfactory to you and your counsel, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.effect that:
(i) At The Indenture Trustee is a national banking association duly organized and validly existing under the date laws of this the United States.
(ii) The Indenture Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture and the Custody Agreement.
(iii) The execution and delivery of each of the Indenture and the Custody Agreement, and the Representatives performance by the Indenture Trustee of its obligations under the Indenture and the Custody Agreement, have been duly authorized by all necessary action of the Indenture Trustee and each has been duly executed and delivered by the Indenture Trustee.
(iv) The Indenture and the Custody Agreement constitute valid and binding obligations of the Indenture Trustee enforceable against the Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the Indenture and the Custody Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Neither the consummation by the Indenture Trustee of the transactions contemplated in the Indenture and the Custody Agreement nor the fulfillment of the terms thereof by the Indenture Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Indenture Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Indenture Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Indenture Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Indenture Trustee or any of its subsidiaries.
(vii) The Eligible Lender Trustee is an “eligible lender” for purposes of the FFELP Program in its capacity as Indenture Trustee with respect to Trust Student Loans held under the Indenture.
(k) You shall have received an agreement substantially opinion addressed to you of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for the Eligible Lender Trustee and the Indenture Administrator, in form and substance satisfactory to you.
(l) [Reserved]
(m) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of SLC, SLC Receivables and the Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of SLC, SLC Receivables or the Servicer, as the case may be, contained in the respective SLC Sale Agreement, SLC Receivables Sale Agreement, the Servicing Agreement, the Subservicing Agreement and the Administration Agreement, as applicable, are true and correct in all material respects, that each of SLC, SLC Receivables and the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding SLC, SLC Receivables or the Servicer, as applicable, is fair and accurate in all material respects, and (iii) since the first Time of Sale, no Material Adverse Effect or any development involving a prospective Material Adverse Effect, in or affecting particularly the business or properties of SLC, SLC Receivables or the Servicer, as applicable, has occurred.
(n) You shall have received certificates addressed to you dated the Closing Date of any two of the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer or the principal accounting officer of the Sub-Servicer in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Sub-Servicer contained in the Subservicing Agreement are true and correct in all material respects, that the Sub-Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date, (ii) that they have reviewed the Prospectus and the Disclosure Package and that the information therein regarding the Sub-Servicer is fair and accurate in all material respects, and (iii) since the date of the Time of Sale, except as may be disclosed in the Prospectus or the Disclosure Package, no Material Adverse Effect or any development involving a prospective Material Adverse Effect in, or affecting particularly the business or properties of the Sub-Servicer has occurred.
(o) You shall have received evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Trust Student Loans and the proceeds thereof to the Indenture Trustee.
(p) [Reserved]
(q) The Underwriters shall have received on the Closing Date from KPMG LLP, accountants to the Company, a letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to (i) certain information regarding the Trust Student Loans and (ii) the static pool data and setting forth the results of Annex A hereto such specified procedures.
(r) All the representations and warranties of the Company contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriters shall have received a certificate, dated the Closing Date and signed by an executive officer of the persons listed on Schedule B hereto, Company to the effect set forth in this Section 8(r) and such in Section 8(s) hereof.
(s) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements shall herein contained and required to be in full force and effect on performed or complied with by it hereunder at or prior to the Closing Date.
(jt) All proceedings taken at The Underwriters shall have received by instrument dated the Closing Date, in lieu of or prior in addition to each the legal opinions referred to in this Section 8, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents.
(u) You shall have received certificates addressed to you dated the Closing Date of Pennsylvania Higher Education Assistance Agency, New York State Higher Education Services Corporation, Texas Guaranteed Student Loan Corporation, California Student Aid Commission and United Student Aid Funds, Inc. (each, a “Significant Guarantor”) to the effect that (i) the information in the Prospectus and the Disclosure Package with respect to the applicable Significant Guarantor does not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements about the Significant Guarantor therein, in the light of the circumstances under which they are made, not misleading, and (ii) there are no proceedings pending or overtly threatened in writing against the Significant Guarantor in any court or before any governmental authority or arbitration board or tribunal, wherein an unfavorable decision, ruling or finding is likely and would materially adversely affect the performance by the Significant Guarantor to carry on its business substantially as now conducted.
(v) The Notes shall be rated “AAA” by Fitch, Inc. (“Fitch”), “AAA” by Standard & Poor’s Financial Services LLC (“S&P”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service (“Moody’s); and neither Fitch, S&P nor Moody’s has placed the Notes under surveillance or review with possible negative implications.
(w) You shall have received evidence satisfactory to you of the completion of all actions necessary to effect the transfer of the Trust Student Loans as described in the Prospectus and the Disclosure Package and the recordation thereof on SLC’s, SLC Receivables’ and the Sub-Servicer’s computer systems.
(x) You shall have received such further information, certificates and documents as the Representative may reasonably have requested, and all proceedings in connection with the sale of the Shares transactions contemplated by this Agreement and all documents incidental hereto shall be in all material respects reasonably satisfactory in form and substance to you the Representative and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel its counsel.
(y) You shall have received each such other opinions, certificates and every additional document, letter, opinion, certificate documents as are required under the Indenture as a condition to the issuance of the Notes. The Company will provide or other item dated and executed in a manner reasonably satisfactory cause to be provided to you such conformed copies of such of the foregoing opinions, notes, letters and such counsel, documents as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2010-1)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter hereunder are subject to the accuracy, as of the date hereof and at each of the First Closing Date and the Second Closing Date (as if made at such Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective under not later than 5:00 p.m., Central time, on the Act anddate of this Agreement, at or such later time and date as you shall approve and all filings required by Rules 424, 430A and 433 of the Closing Date, Rules and Regulations shall have been timely made (without reliance on Rule 424(b)(8) or Rule 164(b)); no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) The Underwriters shall not have advised the Company that (i) the Registration Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the Underwriters’ opinion, is material or omits to state a material fact which, in the Underwriters’ opinion, is required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an untrue statement of material fact which, in the Underwriters’ opinion, is material, or omits to state a fact which, in the Underwriters’ opinion, is material and is required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(c) Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Time of Sale Disclosure Package and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company, or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), that, in your judgment, makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.
(d) On each Closing Date, there shall have been furnished to you the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, dated such Closing Date and addressed to you in substantially the form attached hereto as Exhibit B. On each Closing Date, there shall have been furnished to you the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.A., intellectual property counsel for the Company, dated such Closing Date and addressed to you in substantially the form attached hereto as Exhibit C. On each Closing Date, there shall have been furnished to you the opinion of ▇▇▇▇ Law Group, counsel for the Selling Stockholders, dated such Closing Date and addressed to you in substantially the form attached hereto as Exhibit D.
(e) On each Closing Date, there shall have been furnished to you such opinion or opinions from Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Representative, dated such Closing Date and addressed to you, with respect to such matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(f) On each Closing Date you shall have received a letter of Drake & ▇▇▇▇▇ CPAs, dated such date and addressed to you, confirming that it is an independent public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Shares Commission, and stating, as of the date of such letter (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 Disclosure Package, as of a date not prior to the date hereof or more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the execution of this Agreement, and the effect of the letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(g) On each Closing Date, there shall have been issued furnished to you a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, 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 such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Securities for offering or sale, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceedings proceeding for that purpose shall have has been instituted before or, to the knowledge best of the Company or the Representativestheir knowledge, shall be is contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.regulatory body; and
(biii) At each Closing Date, (i) the representations and warranties The signers of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall said certificate have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) carefully examined the Registration Statement, each preliminary prospectus the Time of Sale Disclosure Package and the Prospectus Prospectus, and any amendments thereof or supplements thereto, and (A) each part of the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulationscontain, and neither contained when such part of the Registration Statement, or any preliminary prospectus or amendment thereof, became effective, all statements and information required to be included therein, the ProspectusRegistration Statement, or any amendment thereof, does not contain and did not contain when such part of the Registration Statement, or supplement theretoany amendment thereof, shall contain became effective, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus, as amended or supplemented, does not include and did not include as of its date or the time of first use within the meaning of the Rules and Regulations, any untrue statement of material fact or omit to state and did not omit to state as of its date or the time of first use within the meaning of the rules and Regulations a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (iiiB) neither (1) the Time of Sale Disclosure Package nor (2) any individual Issuer Limited-Use Free Writing Prospectus, when considered together with the Time of Sale Disclosure Package, include, nor included as of the Time of Sale any untrue statement of a material fact or omits, or omitted as of the Time of Sale, to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) since the Time of Sale there shall have beenhas occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, since (D) subsequent to the respective dates as of which information is given, no material adverse change given in the condition (financial or otherwise), business, prospects or results Time of operations of the Company Sale Disclosure Package and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have has not incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactiontransactions, contract or agreement not in the ordinary course of business business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Time of Sale Disclosure Package and in the Prospectus, there has not been any change in the capital stock (other than as referred to or contemplated a change in the Registration Statement; number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company or any other Material Adverse Change or any development which could reasonably be expected to result in any Material Adverse Change (whether or not arising in the ordinary course of business), and (ivE) except as set forth stated in each preliminary prospectus the Time of Sale Disclosure Package and in the Prospectus, no there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries is a party before or by any commissioncourt, board Governmental Agency or administrative agency in the United States or elsewhereany arbitrator, wherein an unfavorable decision, ruling or finding which could reasonably be expected, individually or in the aggregate, expected to result in a any Material Adverse Effect; and you shall have received at Change.
(h) On each Closing Date, there shall have been furnished to you a certificate certificate, dated such Closing Date and addressed to you, signed by the Selling Stockholder, to the effect that the representations and warranties of the principal executive officer Selling Stockholder in this Agreement are true and the principal financial or accounting officer of the Company, dated correct as if made at and as of such Closing Date, evidencing compliance and the Selling Stockholder has complied with all the provisions of this Subsection 5(b), agreements and confirming satisfied all the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein on its part to be met by the Company have been met as of performed or satisfied at or prior to such dateClosing Date.
(ci) No Underwriter The Representative shall have discovered and disclosed to received all of the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that Lock-Up Agreements referenced in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingSection 4.
(dj) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the The Company shall have furnished to you and counsel for the Representative such counsel such documents additional documents, certificates and evidence as you or they may have reasonably requested for the purpose of enabling them to pass upon such mattersrequested.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(hk) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringarrangements.
(il) At The Firm Shares or the date of this AgreementOption Shares (as applicable) to be delivered on such Closing Date will have been approved for listing on the NYSE MKT. All such opinions, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B heretocertificates, letters and such agreements shall other documents will be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale of the Shares shall be reasonably provisions hereof only if they are satisfactory in form and substance to you and counsel to for the several UnderwritersRepresentative. The Company will furnish you with such conformed copies of such opinions, certificates, letters and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, documents as you or such counsel may shall reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Sources: Purchase Agreement (Magnegas Corp)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement All actions required to be taken and all filings required to be made by EdLinc, SLFC, or the Transferor II under the Securities Act and the Trust Indenture Act prior to the sale of the Notes shall have become effective under the Act and, at been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications sale of the Shares Notes or the qualification of the Indenture shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of EdLinc, SLFC, the Company Transferor II or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authoritySky Authorities.
(b) At each Closing DateAny requests to the Commission for inclusion of additional or supplemental information in the Registration Statement or the Prospectus shall have been complied with by EdLinc, (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 such Closing Date SLFC, and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part Transferor II to be performed or complied with on or prior to the Closing Date; your reasonable satisfaction.
(iic) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since Since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth given in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto), contains an untrue statement except as may otherwise be stated therein or contemplated thereby, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other) or net worth of a fact that EdLinc, SLFC, or the Transferor II not contemplated by the Registration Statement, which in the reasonable opinion of counsel to the Representatives is materialRepresentative, would materially adversely affect the market for the Notes, or omits (ii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue or which, in the opinion of EdLinc and its counsel, SLFC and its counsel, the Transferor II and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in the Registration Statement or Prospectus in order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Notes.
(d) On At the time of the Closing, (i) the Notes, each Closing Date you of the Basic Documents, EdLinc’s Program Agreements, the Transferor II’s Program Agreements, SLFC’s Program Agreements, the Trustee’s Program Agreements, the Transferor II’s Trustee’s Program Agreements and this Agreement shall have received a signed opinionbeen duly authorized, dated executed and delivered, and in full force and effect, and, in the case of the Notes, authenticated; (ii) EdLinc’s Authorizing Resolutions, SLFC’s Authorizing Resolutions, and the Transferor II’s Authorizing Resolutions shall have been duly adopted by EdLinc, SLFC, and the Transferor II, as applicable, and shall be in full force and effect; (iii) the contracts between the United States Secretary of Education and each of the Guarantee Agencies shall be duly authorized, executed and delivered and in full force and effect; (iv) the documents referred to in clauses (i) through (iii) above shall be in forms satisfactory to the Representative and shall not have been amended, modified or supplemented from the respective forms heretofore delivered to the Representative, except as may have been agreed to in writing by the Representative, and EdLinc, SLFC, and the Transferor II shall have duly adopted and there shall be in full force and effect such dateadditional resolutions and agreements, as shall, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Minneapolis, Minnesota, be necessary in connection with the transactions contemplated hereby; and (v) EdLinc, SLFC, the Transferor II, the Trustee, the Auction Agent, the Broker-Dealer, the Transferor II’s Trustee, the EdLinc 1998 Indenture Trustee, the Edlinc 1999 Indenture Trustee, the Edlinc ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated herebyGuarantee Agencies shall perform or have performed all their respective obligations required under or specified in this Agreement, the Basic Documents, EdLinc’s Authorizing Resolutions, SLFC’s Authorizing Resolutions, the Transferor II’s Authorizing Resolutions, EdLinc’s Program Agreements, the Transferor II’s Program Agreements, SLFC’s Program Agreements and the Company shall have furnished Trustee’s Program Agreements, to such counsel such documents as they may have reasonably requested for the purpose of enabling them be performed simultaneously with or prior to pass upon such mattersClosing.
(e) On each Closing Date you The Underwriters shall have received on the signed opinionClosing Date an opinion of ▇▇▇▇▇▇ & Whitney LLP, Special Counsel to EdLinc, and the Transferor II, dated as of such date, of K&L Gates LLP, counsel the Closing Date and addressed to the CompanyUnderwriters, in form reasonably and scope satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other UnderwritersRepresentative and its counsel.
(f) At the time of the signing of this Agreement and on each Closing Date, you The Underwriters shall have received on the Closing Date the approving opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Date and in form and scope satisfactory to the Representative and its counsel, and a signed letterletter addressed to the Underwriters to the effect that the Underwriters may rely on such opinion and consenting to the references to it in the Prospectus.
(g) The Underwriter shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, datedcounsel for EdLinc and SLFC, respectivelydated the Closing Date and addressed to the Underwriter, as in form and scope satisfactory to the Underwriter and its counsel.
(h) The Underwriters shall have received on the Closing Date an opinion of each such dateDavenport, from ▇Evans, ▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇, counsel for the Trustee, the EdLinc 1998 Indenture Trustee, the Edlinc 1999 Indenture Trustee, the Edlinc 2004-1 Indenture Trustee, and the Transferor II’s Trustee, dated the Closing Date and addressed to the Underwriters (with executed copies for each of the Underwriters) , in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect and scope satisfactory to the fairness Representative and reasonableness of the underwriting terms and arrangements for this offeringits counsel.
(i) At [Reserved]
(j) [Reserved]
(k) The Underwriter shall have received on the date Closing Date opinions of counsel for such Guarantee Agencies, if any, specified by the Representative, each dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(l) The Underwriters shall have received on the Closing Date an opinion or opinions of ▇▇▇▇▇ & Lardner LLP, counsel for the Underwriters, dated the Closing Date, and addressed to the Underwriters, in form and scope satisfactory to the Representative.
(m) The Underwriters shall have received on the Closing Date from ▇▇▇▇ ▇▇▇▇▇▇ LLP, certified public accountants, a comfort letter dated the Closing Date, and in form and substance satisfactory to the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain financial information pertaining to EdLinc and to the Financed Student Loans and setting forth the results of such specified procedures.
(n) All the representations and warranties of EdLinc, SLFC, and the Transferor II contained in this Agreement, EdLinc’s Program Agreements, the Representatives shall have received an agreement substantially in Transferor II’s Program Agreements, SLFC’s Program Agreements and the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements Basic Documents shall be true and correct in full force all material respects on and effect as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date.
(jo) All proceedings taken EdLinc, SLFC, and the Transferor II each shall have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to each the Closing Date.
(p) The Underwriters shall have received by instrument dated the Closing Date (at the option of the Representative), in addition to the opinions referred to in clauses (d) through (k) of this Section 6, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents or to ▇▇▇▇▇’▇ and Fitch.
(q) The Underwriters shall have received evidence satisfactory to them that ▇▇▇▇▇’▇ and Fitch have rated (i) the Series 2004-C Notes “Aaa” and “AAA”, respectively, and (ii) the Series 2004-D Notes, “A3” and “A”, respectively, and there has not been any announcement by ▇▇▇▇▇’▇ or Fitch that (Y) it is downgrading any of its ratings assigned to the Notes or (Z) it is reviewing its ratings assigned to the Notes with a view to possible downgrading, or with negative implications, or direction not determined.
(r) The Underwriters shall have received a certificate of the President of EdLinc, SLFC, and the Transferor II, as applicable, affirming the matters specified in Sections 6(n) through (q) and such other matters as the Representative may reasonably request.
(s) The Underwriters shall have received (i) a certificate or certificates from the Secretary or Assistant Secretary of each of EdLinc, SLFC, and the Transferor II certifying and attaching copies of (A) organizational documents, (B) resolutions authorizing this Agreement, the Basic Documents, EdLinc’s Program Agreements, the Transferor II’s Program Agreements, SLFC’s Program Agreements and the transactions contemplated hereby and thereby, (C) all written communications, and any memoranda relating to conversations between such entity, its officers and employees or, to its knowledge, its counsel, accountants or other representatives, on the one hand, and the Commission or its staff, on the other hand, relating to the Registration Statement and certifying the incumbency and signature of the officers executing this Agreement, the Basic Documents, EdLinc’s Program Agreements, the Transferor II’s Program Agreements and SLFC’s Program Agreements; and (ii) certificates of legal existence and good standing with respect to SLFC from the Secretary of State of the State of South Dakota and with respect to EdLinc, and the Transferor II from the Secretary of State of the State of Delaware, dated as of the Closing Date or such earlier date within two weeks of the Closing Date.
(t) The Underwriters shall have received a certificate of the Trustee, signed by an officer of the Trustee, dated the Closing Date, (i) to the effect that the Trustee received each of the items enumerated in Section 3.2 of the Indenture; (ii) containing permission to include the information concerning the Trustee in the Prospectus and to use the Basic Documents and the Trustee’s Program Agreements in connection with the sale public offering of the Shares shall Notes; (iii) representing that (A) the Basic Documents to which the Trustee is a party and the Trustee’s Program Agreements, have been duly authorized, executed and delivered on behalf of the Trustee and are in full force and effect, (B) such agreements may be reasonably satisfactory used in connection with the public offering of the Notes, (C) the Trustee is an “eligible lender” under the Higher Education Act of 1965, as amended, (D) no litigation is pending or, to his or her knowledge, threatened in any court to restrain or enjoin the issuance or delivery of any of the Notes, or the collection of revenues pledged or to be pledged to pay the principal of, and interest on, the Notes, or in any way contesting or affecting the validity or enforceability of the Notes, the Basic Documents, the Trustee’s Program Agreements or the Underwriting Agreement or the collection of said revenues or the pledge thereof, (E) there is no litigation pending or to his or her knowledge threatened against the Trustee, or involving any of the property or assets under the control of the Trustee, which involves the possibility of any judgment or liability which may materially adversely affect the security for the Notes or the collection of revenues pledged or to be pledged to pay the principal of, and interest on, the Notes or materially adversely affect the Trustee or the Program (but in lieu of such certificate the Representative may in its sole discretion accept an opinion of the Trustee’s counsel as to the matters referred to above, acceptable to the Representative in form and substance, that in their opinion the issues raised in any such pending or threatened litigation are without substance or that the contentions of the plaintiffs therein are without merit), and (F) he or she has carefully examined the Prospectus with respect to you and counsel references to the several UnderwritersTrustee and that, in his or her opinion, with respect to references to the Trustee, as of the date of the Prospectus and at the time of signing this Agreement all times subsequent through and on including the Closing Date, you the Prospectus did not and such counsel does not contain any 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 were made, not misleading;
(u) The Underwriters shall have received certified copies of the Basic Documents, EdLinc’s Authorizing Resolutions, SLFC’s Authorizing Resolutions, the Transferor II’s Authorizing Resolutions, EdLinc’s Program Agreements, the Transferor II’s Program Agreements, SLFC’s Program Agreements, in each case certified as of the Closing Date by each corporation’s respective corporate Secretary to be a true and every additional documentcorrect copy thereof and in full force and effect.
(v) The Underwriters shall have received certified copies of the Trustee’s Program Agreements, letterin each case certified as of the Closing Date by a duly authorized officer of the Trustee to be a true and correct copy thereof and in full force and effect, opinionand a certified copy of the Broker-Dealer Agreement, certificate or other item certified as of the Closing Date by a duly authorized officer of the Broker-Dealer to be a true and correct copy thereof and in full force and effect.
(w) The Underwriters shall have received certificates of the Transferor II’s Trustee, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee, and the EdLinc 1998 Indenture Trustee, signed by an officer of each such trustee, dated the Closing Date, (i) containing permission to include the information concerning the Transferor II’s Trustee, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee, and executed in a manner reasonably satisfactory to you and such counselthe EdLinc, Indenture Trustee, as you or such counsel may reasonably request applicable, in the Prospectus and to use the Transferor II’s Trustee’s Program Agreements, the Edlinc 2004-1 Indenture Trustee’s Program Agreements, the Edlinc 1999 Indenture Trustee’s Program Agreements, and the EdLinc 1998 Indenture Trustee’s Program Agreements, as applicable, in connection with each preliminary prospectusthe public offering of the Notes; (ii) representing that (A) the Transferor II’s Trustee’s Program Agreements, the ProspectusEdlinc 2004-1 Indenture Trustee’s Program Agreements, the Registration StatementEdlinc 1999 Indenture Trustee’s Program Agreements, and the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not EdLinc 1998 Indenture Trustee’s Program Agreements have been fulfilled as of the date indicatedduly authorized, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive executed and delivered on behalf of the Underwriters compliance Transferor II’s Trustee, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee, and the EdLinc 1998 Indenture Trustee, as applicable, and each is in full force and effect, (B) such agreements may be used in connection with the public offering of the Notes, (C) the Transferor II’s Trustee, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee, and the EdLinc 1998 Indenture Trustee is an “eligible lender” under the Higher Education Act of 1965, as amended, (D) no litigation is pending or, to his or her knowledge, threatened in any conditions court in any way contesting or affecting the validity or enforceability of the Transferor II’s Trustee’s Program Agreements, the Edlinc 2004-1 Indenture Trustee’s Program Agreements, the Edlinc 1999 Indenture Trustee’s Program Agreements, and the EdLinc 1998 Indenture Trustee’s Program Agreements, (E) there is no litigation pending or to his or her knowledge threatened against the Transferor II’s Trustee, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee, or the EdLinc 1998 Indenture Trustee, or involving any of the property or assets under the control of the Transferor II’s Trustee, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee, or the EdLinc 1998 Indenture Trustee, which involves the possibility of any judgment or liability which may materially adversely affect the security for the Notes or materially adversely affect the Transferor II’s Trustee, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee, or the EdLinc 1998 Indenture Trustee or the Program (but in lieu of such certificate the Representative may in its sole discretion accept an opinion of the Transferor II’s Trustee counsel, the Edlinc 2004-1 Indenture Trustee, the Edlinc 1999 Indenture Trustee’s counsel, or the EdLinc 1998 Indenture Trustee’s counsel as to the obligations of matters referred to above, acceptable to the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Represent
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are shall be subject to (A) the continuing accuracy of the representations and warranties of the Company herein, as of the date hereof and as of the Closing Date and any Option Closing Date, as if such representations and warranties had been made on and as of the Closing Date or Option Closing Date, as the case may be, (B) the accuracy on and as of the Closing Date or any Option Closing Date, of the statements of the officers of the Company made pursuant to the provisions hereof, (C) the performance by the Company on and as of the Closing Date and any Option Closing Date, of its covenants and obligations hereunder, (D) the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, and (E) the following further conditions:
(a) The If the Registration Statement shall have has not become effective under prior to the Act andExecution Time, unless the Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Closing Datebusiness day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or threatened.
(b) The Representative shall not have advised the Company that the Registration Statement, or any amendment thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact which, in the Representative's opinion, is material, or omits to state a fact which, in the Representative's opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have received from Underwriters' Counsel, such opinions or statements with respect to the organization of the Company, the validity of the Securities, the compliance as to form of the Registration Statement, and the Prospectus with the requirements of the 1933 Act and the 1933 Act Regulations promulgated thereunder, and other related matters as the Representative requests. Underwriters' Counsel shall have received such papers and information as it reasonably requests to enable it to pass upon such matters.
(d) On the Closing Date, the Underwriters shall have received the opinion of Greenberg Traurig, LLP, counsel to the Company, dated ▇▇▇ ▇▇▇▇▇n▇ ▇▇▇▇, addressed to the Underwriters and in substantially the form attached hereto as Exhibit B.
(e) At any Option Closing Date, the Underwriters shall have received the opinion of Greenberg Traurig, LLP, dated such Option Closing Date, ▇▇▇▇▇▇▇ed to the Underwriters and in form and substance satisfactory to Underwriters' Counsel, confirming, as of such Option Closing Date, the statements made by Greenberg Traurig, LLP in its opinion delivered on the ▇▇▇▇▇▇▇ D▇▇▇.
(f) Prior to each of the Closing Date and any Option Closing Date and other than as set forth in the Registration Statement or Prospectus, (i) there shall have been no material adverse change in the condition (financial or otherwise), earnings, business prospects, or properties of the Company and its Subsidiaries taken as a whole, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company or any of its Subsidiaries, from the latest date as of which the financial condition of the Company and its Subsidiaries, taken as a whole, is set forth in the Registration Statement and Prospectus which is adverse to the Company and its Subsidiaries, taken as a whole; (iii) neither the Company nor any of its Subsidiaries, shall be in material breach under any provision of any instrument relating to any outstanding indebtedness; (iv) neither the Company nor any of its Subsidiaries shall have issued any securities (other than the Securities); (v) neither the Company nor any of its Subsidiaries shall have declared or paid any dividend or made any distribution in respect of its capital stock of any class; (vi) there shall have been no change in the capital stock of the Company, or any change in the debt (long or short term) or liabilities or obligations of the Company or any of its Subsidiaries (contingent or otherwise); (vii) no amount of the assets of the Company or any of its Subsidiaries shall have been pledged or mortgaged, except as set forth in the Registration Statement and Prospectus; (viii) no actions, suits or proceedings, at law or in equity, shall have been pending or, to the knowledge of the Company, threatened (or circumstances giving rise to same) against the Company or any of its Subsidiaries, or affecting any of its properties or business, before or by any court or federal, state or foreign commission, board or other administrative agency wherein unfavorable decisions, rulings or findings could reasonably be expected, singularly or in the Representativesaggregate, to have a Material Adverse Effect; and (viii) no stop order shall be have been issued under the 1933 Act and no proceedings therefor shall have been initiated or, to the best knowledge of the Company, threatened or contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(bg) At each of the Closing Date and any Option Closing Date, the Underwriters shall have received a certificate of the Company signed by the principal executive officer and by the chief financial officer of the Company, dated the Closing Date or such Option Closing Date, as the case may be, to the effect that each such person has carefully examined the Registration Statement, the Prospectus and this Agreement, and that:
(i) the representations and warranties of the Company contained in this Agreement shall be are true and correct with the same effect in all respects as if made on and as of such Closing Date or Option Closing Date, as the case may be, and the Company shall have performed all of the obligations and has complied with all of the agreements and covenants and satisfied all conditions hereunder contained in this Agreement on its part to be performed or complied with on satisfied at or prior to the such Closing Date or Option Closing Date; , as the case may be;
(ii) no stop order suspending the effectiveness of the Registration StatementStatement or any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of each preliminary prospectus of such person's knowledge or the Company's knowledge, after due inquiry, are contemplated or threatened;
(iii) the Registration Statement and the Prospectus and, if any, each amendment and any amendments or supplements thereto shall in each supplement thereto, contain all material respects conform statements and information required to the requirements of the Act and the Rules and Regulationsbe included therein, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or Statement nor any amendment or supplement thereto, shall contain thereto includes any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and neither the Prospectus nor any supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(iiiiv) there shall have been, since the respective dates as date of which information is giventhe most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), businessearnings, prospects business prospects, or results of operations properties of the Company and its subsidiariesSubsidiaries, taken as a whole, whether or not arising from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not transactions in the ordinary course of business other than business.
(h) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representative letters, at the Execution Time and at the Closing Date, dated respectively as referred of the Execution Time and as of the Closing Date, in form and substance satisfactory to or contemplated the Representative, containing statements and information of the type ordinarily included in accountant's "comfort letters" with respect to the financial statements and certain financial information contained in the Registration Statement; and (iv) except as set forth in each preliminary prospectus Statement and the Prospectus.
(i) On each of the Closing Date and any Option Closing Date, no action, suit or proceeding at law or in equity there shall be pending or, have been duly tendered to the Company’ knowledge, threatened against Representative for the Company several Underwriters' accounts the appropriate number of Securities.
(j) No order suspending the sale of the Securities in any jurisdiction designated by the Representative pursuant to subsection (c) of Section 4 hereof shall have been issued on either the Closing Date or any of its Subsidiaries that would be required to be set forth in the Registration StatementOption Closing Date, and no proceedings for that purpose shall have been instituted or shall be pending or, contemplated.
(k) Prior to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate any voting agreements or voting trusts among shareholders of the principal executive officer and Company of which the principal financial Company has knowledge, will be amended to terminate upon the consummation of an initial public offering by the Company of its Common Stock.
(l) Prior to or accounting officer of at the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof shall have converted all of its Series A Convertible Preferred Stock and confirming that all conditions set forth herein to be met by the Company have been met as Series B Convertible Preferred Stock into shares of such dateCommon Stock.
(cm) No Underwriter Prior to the Closing Date, the Company shall have discovered furnished to the Representative such further information, certificates and disclosed documents as the Representative may reasonably request. If any of the conditions specified in this Section 6, if not otherwise qualified as to materiality, shall not have been fulfilled in all material respects, and if otherwise qualified as to materiality, shall not have been fulfilled in all respects, when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement, if not otherwise qualified as to materiality shall not be in all material respects, and if otherwise qualified as to materiality shall not be, reasonably satisfactory in form and substance to the Representative and Underwriters' Counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus in writing or the Prospectus by telephone or any amendment or supplement thereto, contains an untrue statement of a fact that facsimile confirmed in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact writing. The documents required to be stated therein or necessary in order to make delivered by this Section 6 shall be delivered at the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinionoffices of O'Melveny & Myers LLP, dated as of such date610 Newport Center Drive, of ▇Newport Beach, California ▇▇▇▇▇, on t▇▇ ▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy, as of the date hereof and at each Closing Date (as if made at such Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall have become effective under the Act and, at the Closing Date, remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the qualifications use of the Shares Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted before orinitiated or threatened; any request of the Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the knowledge satisfaction of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityRepresentative.
(b) At The Underwriters shall not have advised the Company that (i) the Registration Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the opinion of counsel for the Underwriters, is material or omits to state a material fact which, in the opinion of such counsel, is required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an untrue statement of fact which, in the Underwriters’ opinion, 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 necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(c) Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Time of Sale Disclosure Package and the Prospectus, neither the Company nor its subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (other than the grant of equity incentives to non-officer employees or consultants in accordance with the Company’s stock option and equity incentive plans or a change in the number of outstanding Ordinary Shares due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company or its subsidiaries (other than the grant of equity incentives to non-officer employees and consultants in accordance with the Company’s stock option and equity incentive plans), or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), that, in the sole judgment of the Representative, makes it impractical or inadvisable to offer or deliver the Shares on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.
(d) On each Closing Date, there shall have been furnished to the Underwriters the opinion of Schwell ▇▇▇▇▇▇▇▇▇▇▇ & Associates LLP, U.S. counsel for the Company, dated such Closing Date and addressed to the Underwriters in substantially the form attached hereto as Exhibit B.
(e) On each Closing Date, there shall have been furnished to the Underwriters the opinion of CBLS Law Offices, Israel counsel for the Company, dated such Closing Date and addressed to the Underwriters in substantially the form attached hereto as Exhibit C.
(f) On each Closing Date, there shall have been furnished to the Underwriters such opinion or opinions from ▇▇▇▇▇▇, Hall & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Closing Date and addressed to the Underwriters, with respect to such matters as the Underwriters may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(g) On the date hereof and on each Closing Date, the Underwriters shall have received a letter of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Kasierer, a member of Ernst & Young Global, dated such date and addressed to the Underwriters, (i) confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to Underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.
(h) On each Closing Date, there shall have been furnished to the Underwriters a certificate, dated such Closing Date and addressed to the Underwriters, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement shall be are true and correct with the same effect as if made on at and as of such Closing Date and the Company shall have performed all of the obligations and has complied with all of the agreements and satisfied all the conditions hereunder on its part to be performed or complied with on satisfied at or prior to the such Closing Date; ;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Shares for offering or sale, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement, each preliminary prospectus the Time of Sale Disclosure Package and the Prospectus Prospectus, and any amendments thereof or supplements thereto, and (A) each part of the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulationscontain, and neither contained when such part of the Registration Statement, or any preliminary prospectus or amendment thereof, became effective, all statements and information required to be included therein, the ProspectusRegistration Statement, or any amendment thereof, does not contain and did not contain when such part of the Registration Statement, or supplement theretoany amendment thereof, shall contain became effective, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus, as amended or supplemented, does not include and did not include as of its date or the time of first use within the meaning of the Rules and Regulations, any untrue statement of material fact or omit to state and did not omit to state as of its date or the time of first use within the meaning of the Rules and Regulations a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (iiiB) neither (1) the Time of Sale Disclosure Package nor (2) any individual Issuer Limited-Use Free Writing Prospectus, when considered together with the Time of Sale Disclosure Package, include, nor included as of the Time of Sale any untrue statement of a material fact or omits, or omitted as of the Time of Sale, to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) since the Time of Sale there shall have beenhas occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, since (D) subsequent to the respective dates as of which information is given, no material adverse change given in the condition (financial or otherwise), business, prospects or results Time of operations of the Company Sale Disclosure Package and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have subsidiaries has incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactiontransactions, contract or agreement not in the ordinary course of business business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Time of Sale Disclosure Package and in the Prospectus, there has not been any change in the capital stock (other than as referred to or contemplated a change in the Registration Statement; number of outstanding Ordinary Shares due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company, or its subsidiaries, or any other Material Adverse Change or any development which could reasonably be expected to result in any Material Adverse Change (whether or not arising in the ordinary course of business), and (ivE) except as set forth stated in each preliminary prospectus the Time of Sale Disclosure Package and in the Prospectus, no there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries subsidiaries is a party before or by any commissioncourt, board Governmental Agency or administrative agency in the United States or elsewhereany arbitrator, wherein an unfavorable decision, ruling or finding which could reasonably be expected, individually or in the aggregate, expected to result in a any Material Adverse Effect; and you Change.
(i) The Underwriters shall have received at all of the Lock-Up Agreements referenced in Section 4, and each such Lock-Up Agreement shall be in full force and effect on each Closing Date, .
(j) The Underwriters shall have received on each Closing Date a certificate of the principal executive officer and the principal financial or accounting officer Secretary of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(ck) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the The Company shall have furnished to the Underwriters and counsel for the Underwriters such counsel such documents additional documents, certificates and evidence as they may have reasonably requested for the purpose of enabling them to pass upon such mattersrequested.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(hl) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringarrangements.
(im) At The Shares shall have been approved for listing on the date Nasdaq Capital Market, subject to official notice of this Agreement, the Representatives issuance. The Company shall have received an agreement substantially in the form conditional approval of Annex A hereto signed by the persons listed on Schedule B hereto, Tel Aviv Stock Exchange for the issuance and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale listing of the Shares shall (subject only to customary post-closing document delivery requirements). All such opinions, certificates, letters and other documents will be reasonably in compliance with the provisions hereof only if they are satisfactory in form and substance to you the Representative and counsel to for the several Underwriters, and at . The Company will furnish the time of signing this Agreement and on the Closing Date, you and Underwriters with such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company conformed copies of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of opinions, certificates, letters and other documents as the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseshall reasonably request.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement All actions required to be taken and all filings required to be made by EdLinc, SLFC or the Transferor under the Securities Act and the Trust Indenture Act prior to the sale of the Notes shall have become effective under the Act and, at been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications sale of the Shares Notes or the qualification of the Indenture shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of EdLinc, SLFC, the Company Transferor or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authoritySky Authorities.
(b) At each Closing DateAny requests to the Commission for inclusion of additional or supplemental information in the Registration Statement or the Prospectus shall have been complied with by EdLinc, (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 such Closing Date SLFC and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part Transferor to be performed or complied with on or prior to the Closing Date; your reasonable satisfaction.
(iic) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since Since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth given in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto), contains an untrue statement except as may otherwise be stated therein or contemplated thereby, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other) or net worth of a fact that EdLinc, SLFC or the Transferor not contemplated by the Registration Statement, which in the reasonable opinion of counsel to the Representatives is materialRepresentative, would materially adversely affect the market for the Notes, or omits (ii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue or which, in the opinion of EdLinc and its counsel SLFC and its counsel, the Transferor and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in the Registration Statement or Prospectus in order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Notes.
(d) On At the time of the Closing, (i) the Notes, each Closing Date you of the Basic Documents, EdLinc's Program Agreements, SLFC's Program Agreements [the Investment Agreement,] the Trustee's Program Agreements and this Agreement shall have been duly authorized, executed and delivered, and in full force and effect, and, in the case of the Notes, authenticated; (ii) EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution and the Transferor's Authorizing Resolution shall have been duly adopted by EdLinc, SLFC and the Transferor, as applicable, and shall be in full force and effect; (iii) the contracts between the United States Secretary of Education and each of the Guarantee Agencies shall be duly authorized, executed and delivered and in full force and effect; (iv) the documents referred to in clauses (i) through (iii) above shall be in forms satisfactory to the Representative and shall not have been amended, modified or supplemented from the respective forms heretofore delivered to the Representative, except as may have been agreed to in writing by the Representative, and EdLinc, SLFC and the Transferor shall have duly adopted and there shall be in full force and effect such additional resolutions and agreements, as shall, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Minneapolis, Minnesota, be necessary in connection with the transactions contemplated hereby; and (v) EdLinc, SLFC, the Transferor, the Trustee, [the Auction Agent, the Broker-Dealer, the Investment Agreement Provider] and the Guarantee Agencies shall perform or have performed all their respective obligations required under or specified in this Agreement, the Basic Documents, [the Investment Agreement,] EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution, the Transferor's Authorizing Resolution, EdLinc's Program Agreements, SLFC's Program Agreements and the Trustee's Program Agreements, to be performed simultaneously with or prior to Closing.
(e) The Underwriters shall have received a signed opinion, dated as of such date, on the Closing Date an opinion of ▇▇▇▇▇▇ & Whitney LLP, Special Counsel to EdLinc, SLFC and the Transferor, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(f) The Underwriters shall have received on the Closing Date the approving opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Date and in form and scope satisfactory to the Representative and its counsel, and a letter addressed to the Underwriters to the effect that the Underwriters may rely on such opinion and consenting to the references to it in the Prospectus.
(g) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, counsel for EdLinc, SLFC and the Transferor, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(h) The Underwriters shall have received on the Closing Date an opinion of Davenport, Evans, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Trustee and for the Transferor's Trustee, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(i) [The Underwriters shall have received on the Closing Date an opinion of counsel for the Auction Agent, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.]
(j) [The Underwriters shall have received on the Closing Date opinions of counsel for the Investment Agreement Providers, dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.]
(k) The Underwriters shall have received on the Closing Date opinions of counsel for such Guarantee Agencies, if any, specified by the Representative, each dated the Closing Date and addressed to the Underwriters, in form and scope satisfactory to the Representative and its counsel.
(l) The Underwriters shall have received on the Closing Date an opinion or opinions of ▇▇▇▇▇ & Lardner, counsel for the Underwriters, dated the Closing Date, and addressed to the Underwriters, in form and scope satisfactory to the Representative.
(m) The Underwriters shall have received on the Closing Date from ▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPPLLP, counsel certified public accountants, an agreed-upon procedures letter dated the Closing Date, and in form and substance satisfactory to the several UnderwritersRepresentative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain financial information pertaining to EdLinc and to the sufficiency Financed Student Loans and setting forth the results of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersspecified procedures.
(en) On each All the representations and warranties of EdLinc, SLFC and the Transferor contained in this Agreement, EdLinc's Program Agreements, SLFC's Program Agreements and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date you as if made on and as of the Closing Date.
(o) EdLinc, SLFC and the Transferor each shall have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(p) The Underwriters shall have received by instrument dated the signed opinionClosing Date (at the option of the Representative), dated as of such date, of K&L Gates LLP, counsel in addition to the Companyopinions referred to in clauses (d) through (k) of this Section 6, in form reasonably satisfactory the right to rely on opinions provided by such counsel for and all other counsel under the Underwriters, together with signed or photostatic copies thereof for each terms of the other UnderwritersBasic Documents or to ▇▇▇▇▇'▇ and Fitch.
(fq) At the time of the signing of this Agreement and on each Closing Date, you The Underwriters shall have received a signed letter, datedevidence satisfactory to them that ▇▇▇▇▇'▇ and Fitch have rated (i) the Series 1999-[X] Senior Notes "Aaa" and "AAA", respectively, as of each such date, from and (ii) the Series 1999-[X] ▇▇▇▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇, addressed "▇▇" and "A", respectively, and there has not been any announcement by ▇▇▇▇▇'▇ or Fitch that (Y) it is downgrading any of its ratings assigned to the Underwriters Notes or (Z) it is reviewing its ratings assigned to the Notes with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwritersa view to possible downgrading, or with negative implications, or direction not determined.
(gr) As The Underwriters shall have received a certificate of the effective date President of EdLinc, SLFC and the Registration StatementTransferor, as applicable, affirming the Common Stock shall be listed on matters specified in Sections 6(n) through (q) and such other matters as the NASDAQ Global Market, subject to official notice of issuanceRepresentative may reasonably request.
(hs) FINRA The Underwriters shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
received (i) At a certificate or certificates from the date Secretary or Assistant Secretary of each of EdLinc, SLFC and the Transferor certifying and attaching copies of (A) organizational documents, (B) resolutions authorizing this Agreement, the Representatives shall have received an agreement substantially in Basic Documents, [the form of Annex A hereto signed by Investment Agreement,] EdLinc's Program Agreements, SLFC's Program Agreements and the persons listed on Schedule B heretotransactions contemplated hereby and thereby, (C) all written communications, and any memoranda relating to conversations between such agreements shall be in full force entity, its officers and effect employees or, to its knowledge, its counsel, accountants or other representatives, on the one hand, and the Commission or its staff, on the other hand, relating to the Registration Statement and certifying the incumbency and signature of the officers executing this Agreement and the Basic Documents; and (ii) certificates of legal existence and good standing with respect to SLFC from the Secretary of State of the State of South Dakota and with respect to EdLinc and the Transferor from the Secretary of State of the State of Delaware, dated as of the Closing Date or such earlier date within two weeks of the Closing Date.
(jt) All proceedings taken at or prior The Underwriters shall have received a certificate of the Trustee, signed by an officer of the Trustee, dated the Closing Date, (i) to the effect that the Trustee received each Closing Date of the items enumerated in Section 3.2 of the Indenture; (ii) containing permission to include the information concerning the Trustee in the Preliminary Prospectus and the Prospectus; (iii) representing that (A) the Indenture, the Supplemental Indenture, the Servicing Agreement, the Transfer Agreement, [the Investment Agreement, the Auction Agent Agreements] and the Trustee's Program Agreements, have been duly authorized, executed and delivered on behalf of the Trustee and are in full force and effect, (B) such agreements may be used in connection with the sale public offering of the Shares Notes, (C) the Trustee is an "eligible lender" under the Higher Education Act of 1965, as amended, (D) no litigation is pending or, to his or her knowledge, threatened in any court to restrain or enjoin the issuance or delivery of any of the Notes, or the collection of revenues pledged or to be pledged to pay the principal of, and interest on, the Notes, or in any way contesting or affecting the validity or enforceability of the Notes, the Basic Documents, [the Investment Agreement,] the Trustee's Program Agreements, or the collection of said revenues or the pledge thereof, (E) there is no litigation pending or to his or her knowledge threatened against the Trustee, or involving any of the property or assets under the control of the Trustee, which involves the possibility of any judgment or liability which may materially adversely affect the security for the Notes or materially adversely affect the Trustee or the Program (but in lieu of such certificate the Representative may in its sole discretion accept an opinion of the Trustee's counsel as to the matters referred to above, acceptable to the Representative in form and substance, that in their opinion the issues raised in any such pending or threatened litigation are without substance or that the contentions of the plaintiffs therein are without merit), and (F) he or she has carefully examined the Prospectus with respect to references to the Trustee and that, in his or her opinion, with respect to references to the Trustee, as of the date of the Prospectus and at all times subsequent through and including the Closing Date, the Prospectus did not and does not contain any 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 were made, not misleading;
(u) The Underwriters shall have received certified copies of the Basic Documents, EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution, the Transferor's Authorizing Resolution, EdLinc's Program Agreements, SLFC's Program Agreements, in each case certified as of the Closing Date by each corporation's respective corporate Secretary to be a true and correct copy thereof and in full force and effect.
(v) The Underwriters shall have received certified copies of the Trustee's Program Agreements [and the Investment Agreement, in each case] certified as of the Closing Date by a duly authorized officer of the Trustee to be a true and correct copy thereof and in full force and effect, [and certified copies of the Broker-Dealer Agreements, in each case certified as of the Closing Date by a duly authorized officer of the Broker-Dealer to be a true and correct copy thereof and in full force and effect].
(w) The Underwriters shall have received a certificate of the Transferor's Trustee, signed by an officer of such trustee, dated the Closing Date, (i) containing permission to include the information concerning the Transferor's Trustee in the Preliminary Prospectus and the Prospectus;
(ii) representing that (A) the Transfer Agreement has been duly authorized, executed and delivered on behalf of the Transferor's Trustee and is in full force and effect, (B) such agreement may be used in connection with the public offering of the Notes, (C) the Transferor's Trustee is an "eligible lender" under the Higher Education Act of 1965, as amended, (D) no litigation is pending or, to his or her knowledge, threatened in any court in any way contesting or affecting the validity or enforceability of the Transfer Agreement, (E) there is no litigation pending or to his or her knowledge threatened against the Transferor's Trustee, or involving any of the property or assets under the control of the Transferor's Trustee, which involves the possibility of any judgment or liability which may materially adversely affect the security for the Notes or materially adversely affect the Trustee or the Program (but in lieu of such certificate the Representative may in its sole discretion accept an opinion of the Transferor's Trustee counsel as to the matters referred to above, acceptable to the Representative in form and substance, that in their opinion the issues raised in any such pending or threatened litigation are without substance or that the contentions of the plaintiffs therein are without merit), and (F) he or she has carefully examined the Prospectus with respect to references to the Transferor's Trustee and that, in his or her opinion, with respect to references to the Transferor's Trustee, as of the date of the Prospectus and at all times subsequent through and including the Closing Date, the Prospectus did not and does not contain any 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 were made, not misleading;
(x) The Underwriters shall have received such additional certificates, instruments and other documents as shall be requested by the Representative, including, without limitation, from EdLinc, SLFC, the Transferor, the Trustee, the Transferor's Trustee, [Subservicers], [the Auction Agent, the Broker-Dealer, the Investment Agreement Provider,] and such Guarantee Agencies, if any, specified by the Representative. All opinions, certificates, letters and other documents referred in this Section 6 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you the Representative and counsel for the Underwriters. Any certificate or document signed by any officer of EdLinc, SLFC or the Transferor and delivered to the several Underwriters, or to counsel for the Underwriters, shall be deemed a representation and at warranty by EdLinc, SLFC or the time of signing this Agreement and on Transferor, respectively, to the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory Underwriters as to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Datestatements made therein. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.these con
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters hereunder under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its covenants and agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective under the Act andeffective, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued issued, and no proceedings for that purpose shall have been instituted before or threatened or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing Date, The Underwriters shall be satisfied that (i) the representations and warranties as of the Company contained Effective Date, the statements made in this Agreement shall be the Registration Statement and the Prospectus were true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or Statement nor the Prospectus, or any amendment or supplement thereto, shall contain any untrue statement of a material fact or omit Prospectus omitted to state any material a fact required to be stated therein or is necessary to make the statements therein not misleading; , (ii) since the Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Prospectus which has not been set forth in an effective supplement or amendment, (iii) there shall have been, since the respective dates as of which information is givengiven in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, no there has not been any material adverse change or any development involving a prospective material adverse change in the condition (financial or otherwise), business, prospects properties, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from that set forth transactions in the Registration Statementordinary course of business, each preliminary prospectus and the Prospectussince such dates, except changes that in the Registration Statement indicates might occur after the effective date ordinary course of the Registration Statementbusiness, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or subsidiaries has entered into any material transaction, contract or agreement transaction not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; Statement in the form in which it originally became effective and the Prospectus contained therein, (iv) except as set forth neither the Company nor any of its subsidiaries has any material contingent obligations which are not disclosed in each preliminary prospectus the Registration Statement and the Prospectus, no action, suit (v) there are not pending or proceeding at law or in equity shall be pending or, known threatened legal proceedings to the Company’ knowledge, threatened against which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against subsidiaries is a party or of which property of the Company or any of its Subsidiaries before or by any commission, board or administrative agency subsidiaries is subject which are material and which are not disclosed in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer Registration Statement and the principal financial Prospectus, (vi) there are not any franchises, contracts, leases or accounting officer of other documents which are required to be filed as exhibits to the Company, dated Registration Statement which have not been filed as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b)required, and confirming the accuracy of (vii) the representations and warranties of the Company set forth herein are true and correct in Section 1 hereof and confirming that all conditions set forth herein material 17 18 respects as of the Closing Date or any later date on which Option Stock is to be met by purchased, as the Company have been met as of such datecase may be.
(c) No Underwriter On or prior to the Closing Date, the legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements contained therein), shall have discovered and disclosed been approved at or prior to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of by Will▇▇▇ ▇▇▇▇ & ▇all▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, unsel for the Underwriters. The Underwriters shall have received from counsel to the several Underwriters, such opinion or opinions with respect to the sufficiency issuance and sale of all corporate proceedings the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents information as they may have reasonably requested for the purpose of enabling request to enable them to pass upon such matters.
(ed) On each the Closing Date you Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the signed opinionUnderwriters, dated as the Closing Date or, if related to the later sale of Option Stock, such later date, of K&L Gates LLPHutc▇▇▇▇ ▇▇▇e▇▇▇ & ▇itt▇▇▇, counsel ▇▇unsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.effect set forth below:
(i) At Each of the date Company and its subsidiaries has been duly organized and is validly existing and in good standing under the laws of this Agreementits jurisdiction of incorporation or formation, as the Representatives shall have received an agreement substantially case may be, with full power and corporate authority to own or, lease its properties and to conduct its business as described in the form Registration Statement and the Prospectus and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the ownership or leasing of Annex A hereto signed by property or the persons listed on Schedule B hereto, and conduct of its business requires such agreements shall be qualification (except for those jurisdictions in full force and which the failure so to qualify would not have a material adverse effect on the Closing Date.Company and its subsidiaries, taken as a whole);
(jii) All proceedings taken at or prior to each Closing Date in connection with Upon the closing of the sale of the Shares shall be reasonably satisfactory Underwritten Stock, the authorized capital stock of the Company consists of 1,000,000 shares of Preferred Stock, $.01 par value, of which there are no outstanding shares, and 100,000,000 shares of Common Stock, $0.01 par value, of which there are outstanding ________ shares (including the Underwritten Stock and any shares of Option Stock issued on the date hereof). The securities of the Company conform in form and substance to you and counsel all material respects to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed description thereof contained in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or . Proper corporate proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of validly taken to authorize the date indicated, Company's authorized capital stock and all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company outstanding shares of such cancellation on or prior to capital stock (including the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Underwritten Stock
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of ------------------------------------------- the Underwriters hereunder to purchase and pay for the Preferred Securities are subject to the accuracy of the representations and warranties and to compliance with the agreements of the Offerors herein as of the date hereof and as of the Closing Date, to the accuracy of the written statements of the Offerors made pursuant to the provisions hereof, to the performance by the Offerors of their covenants and obligations hereunder and to the following additional conditions:
(a) The If the Registration Statement or any amendment thereto filed prior to the Closing Date has not been declared effective prior to the time of execution hereof, the Registration Statement shall have become effective not later than 10:00 a.m. (Louisville, Kentucky time) on the first business day following the time of execution of this Agreement, or at such later time and date as you may agree to in writing. If required, the Prospectus and any amendment or supplement thereto shall have been timely filed in accordance with Rule 424(b) and Rule 430A under the 1933 Act and, at the Closing Date, no and Section 4(a) hereof. No stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares any amendment or supplement thereto shall have been issued under the 1933 Act or any applicable state securities laws and no proceedings for that purpose shall have been instituted before or shall be pending, or, to the knowledge of the Company Offerors or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities authority. Any request on the part of the Commission or “Blue Sky” commissioner any state authority for additional information (to be included in the Registration Statement or authorityProspectus or otherwise) shall have been disclosed to you and complied with to your satisfaction and to the satisfaction of counsel for the Underwriters.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) Neither the Registration StatementStatement or any post-effective amendment thereto, each preliminary prospectus and nor the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall contain any an untrue statement of a fact which, in your opinion, is material fact or omit omits to state any a fact which, in your opinion, is material fact and is required to be stated therein or is necessary to make the statements therein (in the case of the Prospectus or any amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading; .
(iiic) there All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Trust Agreement and the Preferred Securities, and the authorization and form of the Registration Statement and Prospectus, other than financial statements and other financial data, and all other legal matters relating to this Agreement and the transactions contemplated hereby or by the Trust Agreement shall be satisfactory in all material respects to counsel for the Underwriters, and the Offerors and the Subsidiaries shall have been, since the respective dates as of which furnished to such counsel all documents and information is given, no material adverse change in the condition relating thereto that they may reasonably request to enable them to pass upon such matters.
(financial or otherwised) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLC ("GD&M"), businesscounsel for the Offerors, prospects shall have furnished to you their signed opinion or results opinions, dated the Closing Date, in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing under the laws of operations the Commonwealth of Kentucky, and is duly registered as a bank holding company under the BHC Act. Each of the Subsidiaries is validly existing and in active status or good standing under the laws of its jurisdiction of incorporation or organization, as the case may be. Each of the Company and the Subsidiaries has full power and authority to own or lease its subsidiariesproperties and to conduct its business as such business is described in the Prospectus;
(ii) The capital stock, taken Debentures and Guarantee of the Company and the equity securities of the Trust conform to the description thereof contained in the Prospectus in all material respects. The capital stock of the Company authorized as of September 30, 2001 is as set forth under the caption "Capitalization" in the Prospectus, and the shares issued and outstanding as indicated in this opinion have been duly authorized and validly issued and are fully paid and nonassessable. To the best of such counsel's knowledge, and except as described in the Registration Statement or the Prospectus (or if the Prospectus is not yet in existence, the most recent Preliminary Prospectus), there are no outstanding rights, options or warrants to purchase, no other outstanding securities convertible into or exchangeable for, and no commitments, plans or arrangements to issue, any shares of capital stock of the Company or equity securities of the Trust;
(iii) The issuance, sale and delivery of the Preferred Securities and Debentures in accordance with the terms and conditions of this Agreement and the Indenture have been duly authorized by all necessary actions of the Offerors.
(iv) The Preferred Securities have been duly authorized by the Trust Agreement and, when issued and sold in accordance with the Trust Agreement will be duly and validly issued, fully paid and nonassessable beneficial interests in the assets of the Trust and entitled to the benefits of the Trust Agreement, and will conform in all material respects to the description thereof in the Registration Statement and the Prospectus. The Preferred Securities have been approved for listing on the American Stock Exchange, subject to official notice of issuance.
(v) There are no preemptive or other rights to subscribe for or to purchase, and other than as disclosed in the Prospectus, no restrictions upon the voting or transfer of, any shares of capital stock or equity securities of either Offeror pursuant to the corporate charter, by-laws or other governing documents (including, without limitation, the Trust Agreement) of either Offeror or any of the Subsidiaries, or, to the best of such counsel's knowledge, any agreement or other instrument to which either Offeror or any of the Subsidiaries is a wholeparty or by which either Offeror or any of the Subsidiaries may be bound.
(vi) The Offerors have all requisite corporate and trust power to enter into and perform their obligations under this Agreement, from that and this Agreement has been duly and validly authorized, executed and delivered by the Offerors and constitutes the legal, valid and binding obligations of the Offerors enforceable against the Offerors in accordance with its terms, except as the enforcement hereof or thereof may be limited by general principles of equity and by bankruptcy or other laws relating to or affecting creditors' rights generally, and except as the indemnification and contribution provisions hereof may be limited under applicable laws and certain remedies may not be available in the case of a non-material breach;
(vii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly qualified under the Trust Indenture Act, has been duly authorized, executed and delivered by the Company, and is a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the rights and remedies of creditors generally and of general principles of equity;
(viii) The Debentures have been duly authorized, executed, authenticated and delivered by the Company, the holders thereof are entitled to the benefits of the Indenture, and are legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the effect of bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the rights and remedies of creditors generally and of general principles of equity;
(ix) The Expense Agreement has been duly authorized, executed and delivered by the Company, and is a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the rights and remedies of creditors generally and of general principles of equity;
(x) To the best of such counsel's knowledge, neither of the Offerors nor any of the Subsidiaries is in breach or violation of, or default under, with or without notice or lapse of time or both, its corporate charter, by-laws or governing document (including, without limitation, the Trust Agreement). The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and the Trust Agreement do not and will not conflict with, result in the creation or imposition of any material lien, claim, charge, encumbrance or restriction upon any property or assets of either Offeror or any Subsidiary or the Preferred Securities pursuant to, or constitute a material breach or violation of, or constitute a material default under, with or without notice or lapse of time or both, any of the terms, provisions or conditions of the charter, by-laws, operating agreement or governing document (including, without limitation, the Trust Agreement) of either Offeror or any Subsidiary, or to the best of such counsel's knowledge, any indenture, mortgage, deed of trust, loan or credit agreement, note, material contract, lease, franchise, license or any other agreement or instrument to which either Offeror or any Subsidiary is a party or by which any of them or any of their respective properties may be bound or any order, decree, judgment, franchise, license, Permit, or rule or regulation of any court, arbitrator, government, or governmental agency or instrumentality, domestic or foreign, known to such counsel having jurisdiction over the Offerors or the Subsidiaries or any of their respective properties. No authorization, approval, consent or order of, or filing, registration or qualification with, any person (including, without limitation, any court, governmental body or authority) is required under Kentucky law in connection with the transactions contemplated by this Agreement in connection with the purchase and distribution of the Preferred Securities by the Underwriters;
(xi) To the best of such counsel's knowledge, holders of securities of either Offeror either do not have any right that, if exercised, would require either Offeror to cause such securities to be included in the Registration Statement or have waived such right. To the best of such counsel's knowledge, neither of the Offerors nor any of the Subsidiaries is a party to any agreement or other instrument which grants rights for or relating to the registration of any securities of either Offeror;
(xii) Except as set forth in the Registration Statement, each preliminary prospectus Statement and the Prospectus, except changes that to the Registration Statement indicates might occur after the effective date best of the Registration Statementsuch counsel's knowledge, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (ivi) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall is pending or threatened in writing to which any of the Offerors or the Subsidiaries is or could reasonably be expected to become a party, and (ii) no action, suit or proceeding is pending or, to or threatened in writing against or affecting any of the Company’ knowledge, threatened against Offerors or the Company Subsidiaries or any of its Subsidiaries that would be required to be set forth in the Registration Statementtheir respective properties, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any court or governmental official, commission, board or other administrative agency in the United States agency, authority or elsewherebody, or any arbitrator, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually expected to have a material adverse effect on the consummation of this Agreement or the issuance and sale of the Preferred Securities as contemplated herein which is required to be disclosed in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives and is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.so disclosed;
(dxiii) On each Closing Date you shall have received a signed opinionNo authorization, dated as approval, consent or order of such dateor filing, of ▇▇▇▇▇▇registration or qualification with, ▇▇▇▇▇▇▇▇ & Markiles LLPany person (including, counsel to the several Underwriterswithout limitation, any court, governmental body or authority) is required in connection with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall Trust Agreement, the Registration Statement and the Prospectus, except such as have received an agreement substantially in been obtained under the form of Annex A hereto signed by 1933 Act and the persons listed on Schedule B heretoTrust Indenture Act, and except such agreements shall as may be in full force and effect on required under state securities laws or Interpretations or Rules of the Closing Date.
(j) All proceedings taken at or prior to each Closing Date NASD in connection with the sale purchase and distribution of the Shares shall Preferred Securities by the Underwriters, as to which such counsel need express no opinion;
(xiv) The Registration Statement and the Prospectus and any amendments or supplements thereto and any documents incorporated therein by reference (other than the financial statements or other financial data included therein or omitted therefrom and Underwriters' Information, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations as of their respective dates of effectiveness;
(xv) To the best of such counsel's knowledge, there are no contracts, agreements, leases or other documents of a character required to be reasonably satisfactory disclosed in form and substance the Registration Statement or Prospectus or to you and counsel be filed as exhibits to the several UnderwritersRegistration Statement that are not so disclosed or filed;
(xvi) The statements under the captions "Description of the Trust," "Description of the Preferred Securities," "Description of the Debentures," "Book-Entry Issuance," "Description of the Guarantee," "Relationship Among the Preferred Securities, the Debentures and at the time of signing this Agreement Guarantee," and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed "ERISA Considerations" in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, and the Registration Statementstatements under the captions "Supervision and Regulation" and "Item 3. Legal Proceedings" in the Company's Annual Report on Form 10-K for the year ended December 31, 2000, incorporated by reference into the offer Prospectus, insofar as such statements constitute a summary of legal and sale regulatory matters, documents or instruments referred to therein, are accurate descriptions of the Shares hereundermatters summarized therein in all material respects and fairly present the information called for with respect to such legal matters, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section documents and instruments, other than financial and statistical data as to which said counsel shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on required to express any opinion or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.belief;
Appears in 1 contract
Sources: Underwriting Agreement (Ctbi Preferred Capital Trust Ii)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by Nelnet Funding under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Nelnet Funding or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of Nelnet Funding, the Company and its subsidiariesServicer, taken as a whole, from that set forth in the Sellers or NLS not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Representatives, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of trusts sponsored by Nelnet Funding, the Servicer, the Sellers or NLS by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by Nelnet Funding, the Servicer, the Sellers or NLS (other than an announcement with positive implications of a possible upgrading, and the Prospectusno implication of a possible downgrading, except changes that of such rating), or (iii) any event or development which makes any statement made in the Registration Statement indicates might occur after the effective date of the Registration Statementor Prospectus untrue or which, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course opinion of business other than as referred Nelnet Funding and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel to the Company, d▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Date, in form and substance satisfactory to you and your counsel with respect to the Nelnet Trust Purchase Agreement, the Servicing Agreement, Auction Agent Agreement, the Indenture, the Company Eligible Lender Agreement and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel for the Company, ▇▇ ▇▇▇▇ ▇▇d substance satisfactory to you and your counsel, concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the transfer of the Financed Eligible Loans from the Sellers to Nelnet Funding, from Nelnet Funding to the Company and from the Company to the Trustee.
(d) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Kutak Rock LLP, dated in its capacity as of such date, of counsel for Nelnet Fundin▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, dated the Closing Date, in form and substance satisfactory to you and your counsel to the effect that the statements in the Prospectus under the headings "Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and are correct in all material respects.
(e) You shall have received an opinion addressed to you of Kutak Rock LLP, in its capacity as counsel for Nelnet Fundin▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ & Markiles LLP, dated the Closing Date, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each character of the other UnderwritersNotes for federal tax purposes.
(f) At the time of the signing of this Agreement and on each Closing Date, you You shall have received a signed letteran opinion addressed to you of Stroock & Stroock & Lavan LLP, datedin its capacity as Underwriters' Counsel, respectively, as of each such date, from dated t▇▇ ▇▇osing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion addressed to you of Ballard Spahr Andrews & Ingersoll LLP, in its capacity as counsel fo▇ ▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇ing and the Company, addressed dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of Prospectus and the Registration StatementStatement and certain matters arising under the Trust Indenture Act of 1939, as amended, and the Common Stock shall be listed on the NASDAQ Global MarketInvestment Company Act of 1940, subject to official notice of issuanceas amended.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives You shall have received an agreement substantially opinions addressed to you of Perry, Guthery, Haase & Gessford, P.C. in their capacity as counsel to Nelnet, ▇▇ se▇▇▇▇▇▇ ▇nd administrator, NLS, Nelnet Funding and each of the form of Annex A hereto signed by the persons listed on Schedule B heretoSellers, and such agreements shall be in full force and effect on each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of Nelnet, NLS and each of the Sellers is a corporation, and Nelnet Funding is a limited liability company, in good standing under the laws of their respective states of incorporation or organization; each having the full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under each of the Basic Documents to which it is a party.
(ii) The Purchase Agreements have been duly authorized, executed and delivered by the respective Seller or Nelnet Funding, as applicable, the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Agreement and this Agreement have been duly authorized, executed and delivered by Nelnet Funding, the Administration Agreement, the Servicing Agreement and the Subservicing Agreement have been duly authorized, executed and delivered by Nelnet and the Subservicing Agreement and the NLS Custodian Agreement have been duly authorized, executed and delivered by NLS and each such agreement is the legal, valid and binding obligations of the respective Seller, Nelnet Funding, Nelnet and NLS, as the case may be, enforceable against each such Seller, Nelnet Funding, Nelnet and NLS, as the case may be, in accordance with their respective terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(iii) Neither the execution and delivery by Nelnet of the Administration Agreement, the Servicing Agreement or the Subservicing Agreement, or the execution and delivery by Nelnet Funding of the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Agreement or this Agreement, or the execution by each Seller of the respective NHELP Purchase Agreement, or the execution and delivery by NLS of the Subservicing Agreement or the NLS Custodian Agreement, nor the consummation by Nelnet, Nelnet Funding, each Seller or NLS of the transactions contemplated therein nor the fulfillment of the terms thereof by Nelnet, Nelnet Funding, each Seller or NLS will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the by-laws or limited liability company agreement, as the case may be, of Nelnet, Nelnet Funding, each Seller or NLS or of any indenture or other agreement or instrument to which Nelnet, Nelnet Funding, any Seller or NLS is a party or by which Nelnet, Nelnet Funding, any Seller or NLS is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Nelnet, Nelnet Funding, any Seller or NLS of any court, regulatory body, administrative agency or governmental body having jurisdiction over Nelnet, Nelnet Funding, any Seller or NLS.
(iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry and reasonable investigation, threatened against Nelnet, Nelnet Funding, any Seller or NLS before or by any governmental authority that might materially and adversely affect the performance by Nelnet, Nelnet Funding, any Seller or NLS of its obligations under, or the validity or enforceability of, any Basic Documents to which it is a party.
(v) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of Nelnet contained in the Administration Agreement, the Servicing Agreement, or the Subservicing Agreement, or the representations and warranties of Nelnet Funding and the Sellers in the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Trust Agreement or this Agreement or the representations and warranties of the Sellers contained in the Purchase Agreements or the representations and warranties of NLS contained in the Subservicing Agreement or the NLS Custodian Agreement are other than as stated therein.
(vi) No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required (a) for the due execution, delivery and performance by Nelnet of the Administration Agreement, the Servicing Agreement or the Subservicing Agreement, (b) for the due execution, delivery and performance by Nelnet Funding of the Purchase Agreements, the Trust Agreement, the Servicing Agreement, the Nelnet Funding Eligible Lender Trust Agreement or this Agreement, (c) for the due execution, delivery and performance by each Seller of the respective Purchase Agreement, (d) for the due execution, delivery and performance by NLS of the Subservicing Agreement or the NLS Custodian Agreement or (e) for the perfection of the Company's and the Trustee's interest in the Student Loans sold pursuant to the Purchase Agreements or the exercise by the Company (or its permitted assigns) and the Trustee of their rights and remedies under the Purchase Agreements, including specifically the filings of any Uniform Commercial Code financing statements, except for the execution and delivery of the Guarantee Agreements. ------
(vii) The Nelnet Funding Purchase Agreement together with the related bill of sale and blanket endorsement effects a valid ▇▇▇e to the Trustee of the Student Loans to be sold under the Nelnet Funding Purchase Agreement enforceable against creditors of, and purchasers from, the respective Seller.
(viii) As of the date specified in a schedule to such opinion, there were no (a) UCC financing statements naming a Seller as debtor or seller and covering any Student Loans to be sold under the Purchase Agreements or interest therein or (b) notices of the filing of any federal tax lien (filed pursuant to Section 6323 of the Internal Revenue Code) or lien of the Pension Benefit Guaranty Corporation (filed pursuant to Section 4068 of ERISA) covering any Student Loan to be sold under the Purchase Agreements or interest therein, listed in the available records in the respective offices set forth in such schedule opposite each such date (which are all of the offices that are prescribed under either the internal law of the conflict of law rules of the Nebraska UCC as the offices in which filings should be made to perfect security interests in Student Loans), except as set forth in such schedule.
(ix) As of the date of such opinion, by executing the Guarantee Agreements and upon execution and delivery of the instruments of transfer described in the Purchase Agreements and notification of the Guarantors and borrowers of the transfer contemplated thereby, and assuming that the Trustee is an eligible lender as that term is defined in 20 U.S.C.ss.1085(d)(1) of the Higher Education Act of 1965, as amended, the Trustee on behalf of the Company will be entitled to the benefit of the applicable Guarantor and/or Department of Education payments under the Act related to the Student Loans sold under the Purchase Agreements, subject to the terms and conditions of the Guarantee Agreements and the Act.
(i) You shall have received opinions addressed to you of Richards, Layton & Finger, P.A., in their capacity as counsel to the several Underwriters▇▇▇▇▇▇▇e Trustee, and at as Delaware counsel to the time of signing this Agreement Company and on Nelnet Funding, dated the Closing Date, you Date and such counsel shall have received each in form and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably substance satisfactory to you and such your counsel.
(j) You shall have received an opinion addressed to you of counsel to the Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel, as you or such counsel may reasonably request in connection with each preliminary prospectusto the effect that:
(i) The Trustee is a national banking association duly organized and validly existing under the laws of the United States of America.
(ii) The Trustee has the full corporate trust power to accept the office of indenture trustee under the Indenture and to enter into and perform its obligations under the Indenture, the ProspectusNLS Custodian Agreement, the Registration StatementSallie Mae Custodian Agreement, Auction Agent Agreem▇▇▇, ▇he Eligible Lender Agreements, the offer Administration Agreement and sale each Guarantee Agreement.
(iii) The execution and delivery of each of the Shares hereunderIndenture, or proceedings at the Closing Date. If any Custodian Agreement, the Sallie Mae Custodian Agreement, the Auction Agent Ag▇▇▇▇▇▇t, ▇he Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement, and the performance by the Trustee of its obligations under the Indenture, the NLS Custodian Agreement, the Sallie Mae Custodian Agreement, the Auction Agent Ag▇▇▇▇▇▇t, the Administration Agreement, the Eligible Lender Agreements and each Guarantee Agreement, have been duly authorized by all necessary action of the conditions herein provided for in this Section shall not have Trustee and each has been fulfilled as of duly executed and delivered by the date indicatedTrustee.
(iv) The Indenture, all the NLS Custodian Agreement, the Sallie Mae Custodian Agreement, the Auction Agent Agreement, the Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement constitute valid and binding obligations of the several Underwriters under this Agreement may be cancelled Trustee enforceable against the Trustee.
(v) The execution and delivery by the Representatives Trustee of the Indenture, the NLS Custodian Agreement, the Sallie Mae Custodian Agreement, the Auction Agent Ag▇▇▇▇▇▇t, the Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement do not require any consent, approval or authorization of, or any registration or filing with, any state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by notifying the Company Trustee.
(vii) Neither the consummation by the Trustee of the transactions contemplated in the Indenture, the NLS Custodian Agreement, the Sallie Mae Custodian Agreement, the Auction Agent Ag▇▇▇▇▇▇t, ▇he Eligible Lender Agreements, the Administration Agreement and each Guarantee Agreement nor the fulfillment of the terms thereof by the Trustee will conflict with, result in a breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of the Trustee or the terms of any indenture or other agreement or instrument known to such counsel and to which the Trustee or any of its subsidiaries is a party or is bound or any judgment, order or decree known to such counsel to be applicable to the Trustee or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Trustee or any of its subsidiaries.
(viii) There are no actions, suits or proceedings pending or, to the best of such cancellation on counsel's knowledge after due inquiry, threatened against the Trustee (as indenture trustee under the Indenture or prior to in its individual capacity) before or by any governmental authority that might materially and adversely affect the applicable Closing Date. performance by the Trustee of its obligations under, or the validity or enforceability of, the Indenture, the NLS Custodian Agreement, the Sallie Mae Custodian Agreement, the Auction Agent Ag▇▇▇▇▇▇t, the Eligible Lender Agreements, the Administration Agreement or any Guarantee Agreement.
(ix) The Representatives may in their sole discretion waive on behalf execution, delivery and performance by the Trustee of the Underwriters compliance with any conditions to Indenture, the obligations of NLS Custodian Agreement, the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.Sallie Mae Custodian Ag
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Inc)
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are to purchase and pay for the Shares as provided herein shall be subject to the accuracy of the representations and warranties of the Company, in the case of the Firm Shares, as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date), and in the case of the Option Shares, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date); to the performance by the Company of its obligations hereunder; and to the satisfaction of the following conditionsadditional conditions on or before the First Closing Date in the case of the Firm Shares and on or before the Second Closing Date in the case of the Option Shares:
(a) The Registration Statement shall have become effective under not later than 4:00 p.m. Minneapolis, Minnesota time on the Act anddate of this Agreement, at or such later date or time as shall be consented to in writing by you (the Closing "Effective Date, "); and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares thereof shall have been issued and no proceedings for that purpose shall have been instituted before initiated or, to the knowledge of the Company Company, or any of the RepresentativesUnderwriters, shall be contemplated threatened by the Commission SEC or any state securities commission or “Blue Sky” commissioner similar regulatory body; and any request of the SEC for additional information (to be included in the Registration Statement or authoritythe Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriters and Underwriters' Counsel.
(b) At each Closing DateThe Underwriters shall not have advised the Company that the Registration Statement or Prospectus, (i) or any amendment thereof or supplement thereto, contains any untrue statement of a fact which is material or omits to state a fact which is material and is required to be stated therein or is necessary to make the representations and warranties statements contained therein, in light of the Company contained in circumstances under which they were made, not misleading; provided, however, that this Agreement Section 5(b) shall be true not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and correct with the same effect as if made on and as of such Closing Date and conform to written information furnished to the Company shall have performed all by the Underwriters specifically for use in the preparation of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus Statement or the Prospectus, or any such amendment or supplement theretosupplement.
(c) Subsequent to the Effective Date and prior to each Closing Date, 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; (iii) there shall not have beenoccurred any change, since or any development involving a prospective change, which materially and adversely affects the respective dates as of which information is given, no material adverse change in the Company's condition (financial or otherwise), businessearnings, operations, properties, business or business prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration StatementStatement or Prospectus, each preliminary prospectus and which, in the Representative's sole judgment, is material and adverse and that makes it, in the Representative's sole judgment, impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus and this Agreement.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, except changes that and the Registration Statement indicates might occur after the effective date registration, authorization, issue, sale and delivery of the Registration StatementShares, shall have been reasonably satisfactory to Underwriters' Counsel, and neither the Company nor any of its Subsidiaries such counsel shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the ordinary course of business other than as matters referred to or contemplated in the Registration Statement; and this Section.
(ive) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at On each Closing Date, a certificate the Underwriters shall have received the opinion of the principal executive officer and the principal financial or accounting officer of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated as of such Closing Date, evidencing compliance with satisfactory in form and substance to the provisions of this Subsection 5(b)Underwriters and Underwriters' Counsel, and confirming to the accuracy of the representations effect that:
(i) Each of the Company set forth and the Subsidiaries has been duly incorporated and is validly existing as a corporation in Section 1 hereof good standing under the laws of the jurisdiction of its incorporation and confirming that all conditions set forth herein has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement and Prospectus.
(ii) Each of the Company and the Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be met by so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Subsidiaries considered as one enterprise. To the best of such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries.
(iii) The capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of ____________." The issued and outstanding shares of capital stock of the Company have been met as duly and validly issued and are fully paid and nonassessable, and the holders thereof are not subject to any personal liability by reason of being such dateholders.
(civ) No Underwriter shall have discovered and disclosed The Shares to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being such holders. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's articles of incorporation, by-laws or any agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound. To the best of such counsel's knowledge, except as set forth in the Prospectus, neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company and no such rights exist, other than those rights that have been waived prior to any Closing Date that the date hereof. To the best of such counsel's knowledge, except as described in the Registration StatementStatement and Prospectus, there are no options, warrants, agreements, contracts or rights in existence to purchase or acquire from the Company any preliminary prospectus shares of capital stock of the Company.
(v) The Company has the requisite corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by it hereunder. This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Representative on behalf of the Underwriters, is a valid, legal and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification and contribution provisions may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(vi) The Registration Statement has become effective under the Prospectus Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose has been instituted or any is pending or threatened under the Securities Act.
(vii) The Registration Statement and the Prospectus, and each amendment thereof or supplement thereto, contains (other than the financial statements, including the notes thereto and the supporting schedules, and other financial, numerical, statistical and accounting data derived therefrom, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(viii) The form of certificates evidencing the Common Stock and filed as an exhibit to the Registration Statement complies with Nebraska law.
(ix) The description in the Registration Statement and the Prospectus of the Company's articles of incorporation and bylaws and of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be presented by the Securities Act and the applicable Rules and Regulations; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any agreements, contracts, leases or documents of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required.
(x) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated do not result in any violation of the Company's articles of incorporation or bylaws or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other material agreement or instrument known to such counsel to which the Company is a party or by which its properties are bound, or any applicable statute, rule or regulation known to such counsel or, to the best of such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or the Subsidiaries or other any of their material properties or operations.
(xi) No consent, approval, authorization or order of, or filing with, or qualification with, any court, government or governmental agency or body is necessary in connection with the execution, delivery and performance of this Agreement or for the execution, delivery and performance of this Agreement or for the consummation of the transactions herein contemplated, except such as have been obtained under the Securities Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and the distribution of the Shares by the Underwriters.
(xii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Securities Act or the Rules and Regulations, other than those described therein.
(xiii) To the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is presently (A) in material violation of its respective articles of incorporation or bylaws, (B) in breach or violation of any applicable statute, rule or regulation known to such counsel or any order, writ or decree of any court or governmental agency or body, or (C) in breach of or otherwise in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, loan agreement or any other material contract, lease or other instrument to which the Company is subject or by which it may be bound, or to which any of the material assets or property of the Company is subject.
(xiv) To the best of such counsel's knowledge, the Company holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any government or self-regulatory body required for the conduct of its business, and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect.
(xv) On the basis of information obtained as a result of discussions and meetings with officers and other representatives of the Company, discussions with representatives of the independent public accountants for the Company in connection with the preparation of the Registration Statement and the Prospectus, and the examination of other information and documents requested by such counsel, nothing has come to such counsel's attention that has caused them to believe that the Registration Statement and any amendment thereof, at the time it became effective and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, and any amendment or supplement thereto, at the first date of its issuance and up to and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may further state that in making the foregoing comments, such counsel does not intend them to include or cover the financial statements and notes thereto and related schedules and other financial, numerical, statistical and accounting data contained or omitted from the Registration Statement and any amendment or supplement thereto and the Prospectus. Counsel rendering the foregoing opinion may rely as to questions of law not involving the laws of the United States or the States of Minnesota and Nebraska, upon opinions of local counsel, and, as to questions of fact, upon representations or certificates of officers of the Company or its Subsidiaries and of government officials, in which case their opinion is to state the extent of such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Representative and to Underwriters' Counsel.
(df) On each Closing Date you The Underwriters shall have received a signed opinionfrom Winthrop & Weinstine, P.A., Underwriters' Counsel, such opinion or opinions as the Underwriters may reasonably require, dated as of such datethe First Closing Date and the Second Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel which are satisfactory in form and substance to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel Underwriters' Counsel such documents as they it may have reasonably requested for the purpose of enabling them it to pass upon such matters. In connection with such opinion, as to matters of fact relevant to conclusions of law, Underwriters' Counsel may rely, to the extent that it deems proper, upon representations or certificates of public officials and of responsible officers of the Company.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(fg) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date execution of this Agreement, the Representatives Underwriters shall have received an agreement substantially in from Ernst & Young LLP a letter dated the form date of Annex A hereto signed by the persons listed on Schedule B heretosuch execution, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel satisfactory to the several UnderwritersRepresentative, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable published instructions, and at the time of signing this Agreement Rules and on the Closing DateRegulations thereunder, you and such counsel shall have received each and every additional document, letter, further stating in effect that:
(i) In their opinion, certificate or other item dated the audited financial statements included in the Registration Statement and executed Prospectus covered by their report included therein comply as to form in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection all material respects with each preliminary prospectusthe applicable requirements of the Securities Act, the Prospectus, published instructions and the Registration Statement, Rule and Regulations.
(ii) On the offer and sale basis of (A) a reading of the Shares hereunder, or proceedings at the Closing Date. If any minutes of the conditions herein provided for in this Section shall not have been fulfilled as shareholders' and directors' meetings of the date indicatedCompany since _____________, all obligations (B) inquiries of certain officials of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf responsible for financial and accounting matters, (C) a reading of the Underwriters compliance with any conditions Company's monthly operating statements subsequent to the obligations of the Underwriters hereunder_____________, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.and (D) ot
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Bank under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Bank or the RepresentativesUnderwriters, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authoritySEC.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development involving a prospective change, in 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in Bank not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectusopinion of the Representative, except changes that would materially adversely affect the market for the Notes, or (ii) any event or development which makes any statement made in the Registration Statement indicates might occur after or Prospectus untrue in any material respect or which, in the effective date opinion of the Registration StatementBank and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you The Representative shall have received a signed opinion, dated as on the Closing Date an opinion of such date, of ▇▇Rich▇▇▇▇, ▇▇▇▇▇▇ & ▇inger, special Delaware counsel for the Trust, dated the Closing Date and addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counse1 and substantially in the form of Exhibit A hereto.
(d) The Representative shall have received on the Closing Date opinions of Dean ▇▇▇▇▇▇ & Markiles LLP▇osk▇▇▇▇▇, ▇▇ecial counsel for the Bank, dated the Closing Date and addressed to the several UnderwritersUnderwriters and B-2, with respect in form and scope reasonably 14 satisfactory to the sufficiency Representative and its counse1 and substantially in the form of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersExhibit B hereto.
(e) On each Closing Date you The Representative shall have received on the signed opinion, dated as Closing Date an opinion of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from Libb▇ ▇. ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, ▇▇q., General Counsel-Consumer Bank of PNC Bank Corp., dated the Closing Date and addressed to the Underwriters (with executed copies for each of Underwriters, in form and scope reasonably satisfactory to the Underwriters) Representative and its counse1 and substantially in the form heretofore approved by counsel for of Exhibit C hereto.
(f) The Representative shall have received on the Closing Date an opinion of the Law Department of the Eligible Lender Trustee, dated the Closing Date and addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counse1 and substantially in the form of Exhibit D hereto.
(g) As of the effective date of the Registration Statement, the Common Stock The Representative shall be listed have received on the NASDAQ Global MarketClosing Date an opinion of Whit▇ & ▇ase, subject counsel for the Indenture Trustee, dated the Closing Date and addressed to official notice the Underwriters, in form and scope satisfactory to the Representative and its counse1 and substantially in the form of issuanceExhibit E hereto.
(h) FINRA The Representative shall have confirmed that it has not raised any objection with respect received on the Closing Date an opinion of Stro▇▇▇ & ▇troock & Lava▇ ▇▇▇, special counsel for the Underwriters, dated the Closing Date, and addressed to the fairness Underwriters, in form and reasonableness scope Satisfactory to the Representative and its counse1 and substantially in the form of the underwriting terms and arrangements for this offeringExhibit F hereto.
(i) At The Representative shall have received on the Closing Date opinions of Maye▇, ▇▇ow▇ & ▇lat▇, ▇▇unsel for the Bank, dated the Closing Date and addressed to the Underwriters , in form and scope reasonably satisfactory to the Representative and its counse1 and substantially in the form of Exhibits G-1 and G-2 hereto.
(j) The Representative shall have received a letter dated the date of delivery thereof (which shall be on or prior to the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto) from Ernst & Young LLP, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you the Representative, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section specified procedures.
(k) There shall not have been fulfilled been, since the respective dates as of which information is given in the date indicatedRegistration Statement (or any amendment or supplement thereto), all obligations of except as may otherwise be stated therein or contemplated thereby, any material adverse change in the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on condition (financial or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunderother), whether in respect of the First Closing Datebusiness, an Additional Closing Date prospects, properties, net worth or otherwise.results of
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholeSLC, from that set forth in SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Cadwalader, Wickersham & Taft LLP, or other counsel satisfactory to you, dated as of such date, of ▇▇▇▇▇▇, ▇the ▇▇▇▇▇▇▇ & Markiles LLP▇ate, ▇▇ form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Company Eligible Lender Trust Agreement, the Indenture, the Trust Agreement, and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Cadwalader, datedWickersham & Taft LLP, respectivelyin its capacity as counsel for the Company, as of each such date, from in ▇▇▇▇ ▇▇▇ ▇ubs▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCe satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Trust Student Loans from the date of this AgreementSLC to SLC Receivables, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel SLC Receivables to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseIndenture Trustee.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2005-3)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective under the Act and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Company, the Selling Stockholders, or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (i) the representations and warranties of the Company and the Selling Stockholders contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company and the Selling Stockholders shall have performed all of the obligations and complied with all of the conditions hereunder on its their part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b6(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) At each Closing Date the Representative shall have received a certificate of the Company signed by the Secretary of the Company, dated the Closing Date certifying: (i) that the Certificate of Incorporation are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the public offering contemplated by this Agreement are in full force and effect and have not been modified; (iii) all correspondence between the Company or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(d) No Underwriter shall have discovered and disclosed to the Company or any Selling Stockholder prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date Date, you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in the form attached hereto as ANNEX B, addressed to the Representatives and reasonably satisfactory to counsel for the UnderwritersRepresentatives, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) On each Closing Date, you shall have received the favorable opinion of Han Kun Law Offices, PRC counsel to the Company, in the form attached hereto as ANNEX C addressed to the Representatives and reasonably satisfactory to the Representatives, together with signed or photostatic copies thereof for each of the other Underwriters.
(g) On each Closing Date, you shall have received the favorable opinion of C▇▇▇▇▇▇ D▇▇▇ & P▇▇▇▇▇▇, BVI counsel to the Company, in the form attached hereto as ANNEX D addressed to the Representatives and reasonably satisfactory to the Representatives, together with signed or photostatic copies thereof for each of the other Underwriters
(h) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed lettercomfort letters, dated, respectively, as of each such date, from ▇K▇▇▇▇▇▇▇ & Company Certified Public Accountants PCPC and M▇▇▇▇▇ ▇▇▇▇▇▇, LLP, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form forms heretofore approved by counsel for the Underwriters.
(gi) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global MarketNYSE Amex, subject to official notice of issuance.
(hj) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(ik) The Representative covenants with the Company that the Underwriters will not use, authorize the use of, refer to, or participate in the planning for the use of a “free writing prospectus” as defined in Rule 405 under the 1933 Act, which term includes use of any written information furnished by the Commission to the Company and not incorporated by reference into the Registration Statement.
(l) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex ANNEX A hereto signed by the persons listed on Schedule B C hereto, and such agreements shall be in full force and effect on the Closing Date.
(jm) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date.
(n) The Company shall have cancelled warrants held by WestPark Capital Financial Services, LLC in accordance with Section 3(e) of this Agreement. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company and the Selling Stockholders of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (China Intelligent Lighting & Electronics, Inc.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Offered Securities at the Closing Time are subject to the accuracy of the representations and warranties on the part of the Company and the Seller hereunder on the date hereof, the Initial Sale Time and at the Closing Time, the performance by the Company of its covenants and other obligations hereunder and to the satisfaction of the following conditionsfurther conditions at the Closing Time:
(a) The Registration Statement Company shall have become effective under furnish to the Act and, Representative at the Closing DateTime the opinions of Hunton & ▇▇▇▇▇▇▇▇ LLP, no stop order suspending counsel for the effectiveness Company and the Seller (and the Representative shall have received an additional executed original copy of such counsel’s legal opinion for each of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before orseveral Underwriters), addressed to the knowledge of Underwriters and dated the Company or Closing Time, and, in each case, in form and substance satisfactory to the Representatives, Underwriters and to the effect set forth in Exhibit A hereto; in rendering such opinion such counsel shall be contemplated by the Commission or any also state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, that nothing has come to their attention which would cause them to believe that (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither either the Registration Statement, any preliminary prospectus or the Prospectusamendment thereto, or any amendment or supplement document deemed to be a part thereof, at the time of any effective date applicable thereto, shall contain any contained an untrue statement of a material fact or omit omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein in the Registration Statement not misleading.; or (ii) the Prospectus, as of its date or at the Closing Time contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package as of the Initial Sale Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading (it being understood that such counsel need express no belief as to the financial statements or schedules or other financial and statistical data derived therefrom, included or incorporated by reference in the Registration Statement, the Prospectus, the Disclosure Package or any amendments or supplements thereto);
(b) The Representative shall have received copies of any opinions of counsel to the Company supplied to the rating organizations, and the Indenture Trustee, relating to certain matters with respect to the Offered Securities. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters addressed to the Underwriters;
(c) The Securities Administrator and the Master Servicer shall have furnished to the Underwriters an opinion dated the Closing Date, of counsel to the Securities Administrator and Master Servicer (who may be an employee of the Securities Administrator and Master Servicer) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters;
(d) On each Closing Date you shall The Underwriters have received a signed opinionfavorable opinion addressed to them, dated the Closing Date, from_______________ ____, counsel to ________________, the Trustee, in form and substance satisfactory to the Representative and counsel to the Underwriters, to the effect that each of the Transfer and Servicing Agreement has been duly authorized, executed and delivered by the Trustee and constitutes the legal, valid, binding and enforceable agreement of the Indenture Trustee, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights in general and by general principles of equity regardless of whether enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by the Representative and the Trustee;
(e) The Servicer shall have furnished to the Underwriters an opinion dated the Closing Date, of counsel to the Servicer (who may be an employee of the Servicer) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters;
(f) The Credit Risk Manager shall have furnished to the Underwriters an opinion dated the Closing Date, of counsel to the Credit Risk Manager (who may be an employee of the Credit Risk Manager) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters;
(g) The Company shall have furnished to the Representative such further information, certificates, opinions and documents as the Representative may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects satisfactory in form and substance to the Representative and counsel to the Underwriters;
(h) On the date of this Agreement, the date of the Prospectus and at the Closing Time, [accounting firm] shall furnish to the Underwriters a letter or letters, dated respectively as of the respective dates of delivery date substantially in the forms of the drafts to which the Representative will have previously agreed and otherwise in form and substance satisfactory to the Representative and to counsel to the Underwriters;
(i) No amendment or supplement to the Registration Statement, the Prospectus or any shall have been filed to which the Underwriters shall have objected in writing;
(j) Prior to the Closing Time (i) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued or is in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement and the Prospectus 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, in the light of the circumstances under which they were made, not misleading; and (iv) the Disclosure Package shall not contain an untrue statement of a material fact or 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;
(k) Prior to the Closing Time, the Company shall have filed the Prospectus and each Issuer Free Writing Prospectus shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) of the Securities Act Regulations (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act Regulations);
(l) Between the time of execution of this Agreement and the Closing Time, (i) there shall not have been any Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company, in each case, which in the Representative’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Offered Securities as contemplated by the Registration Statement, the Disclosure Package (excluding Corrective Information) and the Prospectus;
(m) Between the time of execution of this Agreement and the Closing Time, there shall not have occurred any downgrading, withdrawal or qualification, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(n) The Representative shall have received, at the Closing Time, a certificate of duly authorized officers of the Company, dated as of such dateClosing Time, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriterseffect that the signers of such certificates have carefully examined the Registration Statement, with respect to the sufficiency Prospectus, the Disclosure Package, any amendment or supplement thereto and this Agreement, and that:
(i) the representations and warranties of all corporate proceedings and other legal matters relating to the Company in this Agreement are true and correct, as if made on and as of the transactions contemplated herebydate thereof, and the Company shall have furnished has complied with all the agreements and satisfied all the conditions on its part to such counsel such documents as they may have reasonably requested for be performed or satisfied at or prior to the purpose of enabling them to pass upon such matters.date thereof;
(eii) On each Closing Date you shall no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have received been instituted or are pending or threatened under the signed opinion, dated Securities Act as of such date, of K&L Gates LLP, counsel the Closing Time;
(iii) when the Registration Statement became effective and at all times subsequent thereto up to the CompanyClosing Time, the Registration Statement, the Prospectus and the Preliminary Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement (other than any Computational Materials or ABS Term Sheets incorporated therein by reference) and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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 form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each light of the other Underwriters.
(f) At circumstances under which they were made, not misleading; the time Disclosure Package, and any amendments or supplements thereto, did not as of any Time of Sale and as of the signing Closing Time does not include any untrue statement of this Agreement and on each Closing Datea material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to in the Underwriters (with executed copies for each light of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Common Stock shall be listed on Prospectus or the NASDAQ Global Market, subject to official notice of issuance.Disclosure Package which has not been so set forth; and
(hiv) FINRA shall have confirmed that it has not raised any objection with respect subsequent to the fairness and reasonableness respective dates as of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially which information is given in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer Prospectus and sale the Disclosure Package, there has not been any Material Adverse Change.
(o) The Seller shall have furnished to the Representative a certificate, dated the Closing Date, of the Shares hereunderSeller, signed by a vice president or proceedings an assistant vice president of the Seller, to the effect that (i) the signer of such certificate has carefully examined the related Disclosure Package and the related Prospectus and nothing has come to the attention of such person that would lead him to believe that such Disclosure Package or the Prospectus contains any untrue statement of a material fact with respect to the Seller or the Mortgage Loans or omits to state any material fact with respect to the Seller or the Mortgage Loans required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) the Seller has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date under this Agreement, and the other Transaction Documents;
(p) The Representatives shall receive, at the Closing Date. If any Time a certificate of the Secretary of each of the Company and the Seller certifying as to (1) the Certificate of Incorporation and any amendments thereto, (2) the bylaws and any amendments thereto, and (3) resolutions of the board of directors of the such entity authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is party and, with respect to the Company, a specimen of the Offered Securities certificate;
(q) The Company shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the Disclosure Package, the representations, warranties and statements of the Company and the Seller contained herein, and the performance by the Company of its covenants contained herein, and the fulfillment of any conditions herein provided for contained herein, as of the Closing Time, as the Representative may reasonably request;
(r) On or prior to the Closing Time, there shall not have occurred any change, or any development involving a prospective change, in this Section or affecting the business or properties of the Company which in the reasonable judgment of the Representative materially impairs the investment quality of the Offered Securities so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Offered Securities as contemplated by the Disclosure Package and the Prospectus;
(s) The Offered Securities shall be rated not lower than the required ratings set forth under the heading “Ratings” in the Disclosure Package and the Prospectus Supplement, such ratings shall not have been fulfilled as rescinded and no public announcement shall have been made that any such required rating of the date indicatedOffered Securities has been placed under review (otherwise than for possible upgrading);
(t) The Ownership Certificate shall have been issued and delivered to FNLC Trust Investments, all obligations of LLC
(u) The Underwriters shall have received evidence satisfactory to the several Representative and counsel to the Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation that, on or prior to before the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, UCC-1 financing statements have been or are being filed (a) in the office of the Secretary of State of the State of Delaware reflecting the transfer of the interest of the Seller in the Mortgage Loans and the proceeds thereof to the Company, and in the office of the Secretary of State of the State of Delaware the transfer of the interest of the Company in the Mortgage Loans and the proceeds thereof to the Issuing Entity, and the pledge of such interest to the Indenture Trustee for the benefit of the Noteholders; and
(v) The Cap Provider shall have furnished to the Underwriters an Additional opinion dated the Closing Date or otherwiseDate, of counsel to the Cap Provider (who may be an employee of the Cap Provider) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters.
Appears in 1 contract
Sources: Underwriting Agreement (First NLC Securitization, Inc.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by Resources and the Depositor under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of Resources, the Company Depositor or the RepresentativesUnderwriters, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authoritySEC.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since Since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth given in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto), contains an untrue statement except as may otherwise be stated therein or contemplated thereby, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of a fact that operations of Resources and the Depositor not contemplated by the Registration 13 To the Parties Identified on Schedule 1 Hereto October 27, 1999 Page 13 Statement, which in the reasonable opinion of counsel to the Representatives is materialRepresentative, would materially adversely affect the market for the Notes, or omits (ii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue in any material respect or which, in the opinion of Resources and the Depositor and their counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in the Registration Statement or Prospectus in order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you The Representative shall have received a signed opinion, dated as on the Closing Date an opinion of such date, of ▇▇Rich▇▇▇▇, ▇▇▇▇▇▇ & ▇inger, P.A., special Delaware counsel for the Trust, dated the Closing Date and addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel.
(d) The Representative shall have received on the Closing Date the opinions of Calf▇▇, ▇▇lter & Gris▇▇▇▇ & Markiles LLP▇▇▇, special counsel for Resources and the Depositor, dated the Closing Date and addressed to the several Underwriters, with respect in form and scope reasonably satisfactory to the sufficiency of all corporate proceedings Representative and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersits counsel.
(e) On each Closing Date you The Representative shall have received on the signed opinionClosing Date an opinion of Thom▇▇▇▇, ▇▇ne & ▇lor▇ ▇▇▇, counsel for Resources and the Depositor, dated as of such date, of K&L Gates LLP, counsel the Closing Date and addressed to the CompanyUnderwriters, relating to general corporate authority and other matters in form and scope reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other UnderwritersRepresentative and its counsel.
(f) At the time of the signing of this Agreement and on each Closing Date, you The Representative shall have received a signed letter, dated, respectively, as on the Closing Date an opinion of each such date, from the Gray▇▇▇, ▇▇ad & Ritc▇▇▇, ▇▇unsel for the Co-Owner Trustee, the Depositor ELT, the Trust ELT and the Indenture Trustee, dated the Closing Date and addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel.
(g) The Representative shall have received on the Closing Date an opinion of Rich▇▇▇▇, ▇▇▇▇▇▇ & Company Certified Public Accountants PC▇inger, P.A. counsel for the Owner Trustee, dated the Closing Date and addressed to the Underwriters (with executed copies for each of Underwriters, in form and scope satisfactory to the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuanceRepresentative and its counsel.
(h) FINRA The Representative shall have confirmed that it has not raised any objection with respect received on the Closing Date the opinion of Squire, Sand▇▇▇ & ▇emp▇▇▇ ▇.▇.P., special counsel for the Underwriters, dated the Closing Date, and addressed to the fairness Underwriters, in form and reasonableness of scope satisfactory to the underwriting terms and arrangements for this offeringRepresentative.
(i) At the date of this Agreement, the Representatives The Representative shall have received an agreement substantially on the Closing Date the opinion of Thom▇▇▇▇, ▇▇ne & ▇lor▇ ▇▇▇, counsel for Resources and the Depositor, dated the Closing Date and addressed to the Underwriters, relating to the transfer of the Financed Student Loans to the Depositor in form and scope reasonably satisfactory to the Representative and its counsel.
(j) The Representative shall have received on the Closing Date the opinion of Thom▇▇▇▇, ▇▇ne & ▇lor▇ ▇▇▇, counsel for Resources and the Depositor, dated the Closing Date and addressed to the Underwriters, relating to the transfer of the financed Student Loans to the Trust in form and scope reasonably satisfactory to the Representative and its counsel.
(k) The Representative shall have received on the Closing Date the opinion of Annex A hereto Thom▇▇▇▇, ▇▇ne & ▇lor▇ ▇▇▇, counsel for Resources and the Depositor, dated the Closing Date and addressed to the Underwriters, relating to tax matters in form and scope reasonably satisfactory to the Representative and its counsel.
(l) The Representative shall have received on the Closing Date the opinion of Thom▇▇▇▇, ▇▇ne & ▇lor▇ ▇▇▇, counsel for Resources and the Depositor, relating to bankruptcy matters dated the Closing Date and addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel.
(m) The Representative shall have received on the Closing Date the opinion of Thom▇▇▇▇, ▇▇ne & ▇lor▇ ▇▇▇, counsel for Resources and the Depositor, relating to such other matters as the Underwriters may reasonably request, dated the Closing Date and addressed to the Underwriters, in form and scope reasonably satisfactory to the Representative and its counsel.
(n) All the representations and warranties of the Resources contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Representative shall have received a certificate, dated the Closing Date and signed by an executive officer of Resources, to the persons listed on Schedule B hereto, effect set forth in this Section 8(n) and such agreements in Section 8(p) hereof.
(o) All the representations and warranties of the Depositor contained in this Agreement and the Basic Documents shall be true and correct in full force all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Representative shall have received a certificate, dated the Closing Date and signed by an executive officer of the Depositor, to the effect on set forth in this Section 8(o) and in Section 8(q) hereof.
(p) Resources shall not have failed at or prior to the Closing Date to have performed or complied in any material respect with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(jq) All proceedings taken The Depositor shall not have failed at or prior to each the Closing Date to have performed or complied in connection any material respect with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(r) The Representative shall have received by instrument dated the Closing Date (at the option of the Representative), in lieu of or in addition to the opinions referred to in clauses (c) through (m) of this Section (8), the right to rely on opinions provided by such counsel and all other counsel under the terms of the Basic Documents to Mood▇'▇ ▇▇▇estors Service, Inc. ("Moody's") and Fitc▇ ▇▇▇A, Inc. ("Fitch").
(s) Moody's and Fitch shall have rated the Series 1999A-1 Notes, Series 1999A-2 Notes, Series 1999A-3 Notes, Series 1999A-4 Notes, Series 1999A-5 Notes and Series 1999A-6 "Aaa" and "AAA", respectively, and the Series 1999B-1 Notes at least "A2" and "A", respectively, and there shall not have been any announcement by Moody's or Fitch that (i) it is downgrading any of its ratings assigned to any Series of Notes or (ii) it is reviewing its ratings assigned to any Series of Notes with a view to possible downgrading, or with negative implications, or direction not determined.
(t) Resources shall have furnished or caused to be furnished to the Representative an executed copy or certified copy of an executed copy of each of the Basic Documents, each Guarantee Agreement, each Subservicing Agreement and such further certificates and documents as the Representative shall have reasonably requested.
(u) The Representative shall have received evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed (i) in the offices of the Secretary of State of the State of Ohio, the Recorder of Hami▇▇▇▇ ▇▇▇nty, Ohio, the Wisconsin Department of Financial Institutions and the Milwaukee County (Wisconsin) Recorder, reflecting the transfer of the interest of Student Loan Funding Holdings LLC in Financed Student Loans to the Depositor ELT and (ii) in the offices of the Secretary of State of Delaware, the Secretary of State of Ohio, the Recorder of Hami▇▇▇▇ ▇▇▇nty, Ohio, the Wisconsin Department of Financial Institutions and the Milwaukee County (Wisconsin) Recorder, reflecting the transfer by the Depositor ELT of the interest of the Depositor in the Financed Student Loans to the Trust ELT and the proceeds thereof to the Trust and (iii) in the offices of the Secretary of State of Delaware, the Secretary of State of Ohio, the Recorder of Hami▇▇▇▇ ▇▇▇nty, Ohio, the Wisconsin Department of Financial Institutions and the Milwaukee County (Wisconsin) Recorder, reflecting the grant of the security interest by the Trust in the Financed Student Loans and the proceeds thereof to the Indenture Trustee. All such opinions, certificates, letters and other documents will be in compliance with the sale of the Shares shall be provisions hereof only if they are reasonably satisfactory in form and substance to you the Representative and counsel to for the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseRepresentative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are to purchase and pay for the Securities, and Warrants, if any, as provided herein shall be subject to the accuracy, as of the date hereof and the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) The No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in your opinion is material, or omits to state a fact which in your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, on a consolidated basis, in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, or any adverse change, or any development involving a prospective adverse change in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries, taken as a whole, or any change in the rating assigned to any securities of the Company which, in your judgment, makes it impractical or inadvisable to offer or deliver the Securities, and Warrants, if any, on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received the opinion of the General Counsel or an Assistant General Counsel to the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of its jurisdiction of incorporation; the Company's subsidiaries have been duly incorporated and are existing corporations in good standing under the laws of their respective jurisdictions of incorporation; each of the Company and its subsidiaries has full power and authority (corporate and other) to conduct its business as described in the Registration Statement and Prospectus; and each of the Company and its subsidiaries is duly qualified to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification; and all of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and the Company owns all outstanding shares of capital stock of each significant subsidiary (as defined in Rule 405 under the Act) (except as otherwise stated in the Registration Statement) in each such case subject to no security interest, other encumbrance, or adverse claim;
(ii) The Indenture, and the Warrant Agreement, if any, have been duly authorized, executed, delivered, and the Indenture has been qualified under the Trust Indenture Act; the Indenture, and the Warrant Agreement, if any, constitute valid and legally binding instruments in accordance with their terms; the Securities, the Warrants, if any, and the Warrant Securities, if any, have been duly authorized, and the Securities, and Warrants, if any, delivered on the Closing Date have been duly executed, authenticated, issued and delivered; the Securities, and Warrants, if any, delivered on the Closing Date constitute, any Contract Securities when executed, authenticated, issued and delivered in accordance with the Delayed Delivery Contracts, if any, the Warrant Agreement, if any, and the Indenture will constitute, and the Warrant Securities, if any, when executed, authenticated, issued and delivered pursuant to the Warrant Agreement, if any, and the Indenture will constitute, valid and legally binding obligations of the Company in accordance with their terms and the terms of the Indenture, and the Warrant Agreement, if any, 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; and the Securities, Warrants, if any, and Warrant Securities, if any, conform to the description thereof in the Prospectus;
(iii) The Registration Statement has become effective under the Act and, at and to the Closing Date, best knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have has been issued and no proceedings proceeding for that purpose shall have has been instituted before or, to the knowledge of the Company or the Representativessuch counsel, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authority.Commission;
(biv) At each Closing Date, (i) the representations and warranties Each part of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of registration statement, when such Closing Date part became effective, and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus Prospectus, and any amendments amendment or supplements thereto shall supplement thereto, complied as to form in all material respects conform to with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; such counsel has no reason to believe that either any part of the registration statement when such part became effective, and neither or the Registration Statement, any preliminary prospectus or Statement and the Prospectus, Prospectus or any amendment or supplement thereto, shall contain any thereto contained an untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; and the documents incorporated by reference in the Registration Statement or Prospectus, when they became effective under the Act or were filed with the Commission under the Exchange Act, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; it being understood that such counsel need express no opinion as to the financial statements or other financial data included in any of the documents mentioned in this clause;
(iiiv) there The descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus which are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus (or then required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; the performance thereof and the consummation of the transactions therein contemplated (including, without limitation, the issuance of the Warrant Securities, if any, upon the exercise of the Warrants, if any) will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it is bound or to which any of the property of the Company or any of its subsidiaries is subject, the Company's charter or by-laws, or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement and any Delayed Delivery Contracts in connection with the issuance or sale of the Securities (including the Contract Securities, if any), Warrants, if any, or Warrant Securities, if any, by the Company, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under state securities laws in connection with the sale of the Securities, Warrants, if any, and Warrant Securities, if any.
(e) You shall have beenreceived from LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Warrants, if any, the Warrant Securities, if any, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. In rendering their opinion, such counsel may rely on certificates of the Trustee under the Indenture as to the execution and authentication of the Securities.
(f) You shall have received, on the Closing Date, a letter from Coopers & ▇▇▇▇▇▇▇ LLP, dated the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given, no material adverse change given in the condition Registration Statement and Prospectus, as of a date not more than five business days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters concerning the Company covered by its draft letter reviewed by the Representatives prior to the execution of this Agreement, and affirming, in form and substance satisfactory to the Representatives and in all material respects, the conclusions and findings set forth in such draft letter.
(g) You shall have received from the Company a certificate, signed by the Chairman of the Board, a Vice Chairman, the President or a Vice President, and by the principal financial or otherwise)accounting officer, businessdated the Closing Date, prospects or results to the effect that, to the best of operations their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and its subsidiariescorrect, taken as a wholeif made at and as of the Closing Date, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement indicates might occur after has been issued, and no proceeding for that purpose has been instituted or is threatened by the effective Commission; and
(iii) Since the date of the Registration Statementthis Agreement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, there has occurred no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be event required to be set forth in an amendment or supplement to the Registration StatementStatement or Prospectus which has not been so set forth, and there has been no proceedings shall document required to be pending or, filed under the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or be incorporated by any commission, board or administrative agency reference in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming Prospectus that all conditions set forth herein to be met by the Company have has not been met as of such dateso filed.
(ch) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the The Company shall have furnished to you such counsel such further certificates and documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinionreasonably requested. All such opinions, dated as of such datecertificates, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the letters and other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall documents will be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale of the Shares shall be reasonably provisions hereof only if they are satisfactory in form and substance to you. The Company will furnish you with such conformed copies of such opinions, certificates, letters and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, documents as you or such counsel may shall reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Sources: Underwriting Agreement (Associates Corporation of North America)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development involving a prospective change, in 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Sellers, from that set forth in the Servicer, UNIPAC or InTuition not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as a Seller, the Servicer, UNIPAC or InTuition by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, a Seller, the Servicer, UNIPAC or InTuition (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Kutak Rock, dated in its capacity as of such datecounsel to the Company, of ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇ & Markiles LLPDate, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Purchase Agreements, Servicing Agreement, Indenture, Auction Agency Agreement, Broker-Dealer Agreements and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Kutak Rock LLP, dated, respectively, in its capacity as of each such date, from counsel for the Com▇▇▇▇, ▇▇ ▇▇▇▇ & Company Certified Public Accountants PC▇▇▇ substance satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel Sellers to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Inc)
Conditions of the Underwriters’ Obligations. The several Your obligations of the Underwriters hereunder are subject to the following conditions:
(ai) The Registration Statement shall have become effective under the Act and, at the Closing Date, no No stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification or registration of the Shares under the securities or blue sky laws of any jurisdiction shall be in effect, (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) to be included in the Registration Statement, the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectuses or otherwise shall have been instituted before or, complied with to the knowledge satisfaction of the Company or the Representatives, shall be contemplated by staff of the Commission or any state securities such other authorities and (iv) after the date hereof no amendment or “Blue Sky” commissioner supplement to the Registration Statement, the Disclosure Package or authoritythe Prospectus shall have been filed unless a copy thereof was first submitted to you and you did not reasonably object thereto in good faith.
(b) At each Closing DateSince the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) there shall not have been a Material Adverse Change, whether or not arising from transactions in the representations and warranties ordinary course of business, in each case other than as set forth in or contemplated by the Company contained in this Agreement shall be true and correct with the same effect as if made on and as Registration Statement (exclusive of such Closing Date and the Company shall have performed all any amendment thereof but inclusive of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with any report incorporated by reference therein on or prior to the Closing Date; date of this Agreement), the Disclosure Package (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement) or the Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), and (ii) the Company shall not have sustained any loss or interference with its business from fire, explosion, storm, flood, act of war, terrorist act 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 in the Registration Statement (exclusive of any amendment thereof but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), the Disclosure Package (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement) or the Prospectus (exclusive of any supplement thereto but inclusive of any report incorporated by reference therein on or prior to the date of this Agreement), the effect of which, in any such case described in clauses (i) and (ii) above, is, in your judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated by the Disclosure Package or the Prospectus.
(c) You shall not have discovered and disclosed to the Company on or prior to each Closing Date that (i) the Registration Statement, each preliminary prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in your opinion, is material, or omits to state any fact which, in your opinion, is material and is required to be stated therein or is necessary to make the Prospectus and any amendments statements therein not misleading, or supplements thereto shall in all material respects conform to (ii) the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of a fact which, in your opinion, is material, or omits to state any fact which, in your opinion, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct at each Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to each Closing Date shall have been duly performed, fulfilled or complied with.
(e) You shall have received from M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, corporate counsel to the Company, such counsel’s written opinion, addressed to you and dated each Closing Date, in form and substance reasonably satisfactory to you. Such counsel shall also have furnished to you a written statement, addressed to you and dated each Closing Date, in form and substance reasonably satisfactory to you.
(f) You shall have received from L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, such opinion or opinions, dated each Closing Date and addressed to you, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(g) On the date of the Time of Sale, the Auditors shall have furnished to you a letter, dated the date of its delivery (the “Original Letter”), addressed to you and in form and substance reasonably satisfactory to you, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters. At each Closing, the Auditors shall have furnished to you a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to each Closing Date which would require any change in the Original Letter if it were required to be dated and delivered at each Closing.
(h) You shall have received on each Closing Date a certificate, addressed to you and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that:
(i) each of the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of the Time of Sale and each Closing Date; and the Company has complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to each Closing Date;
(A) No stop order suspending the effectiveness of the Registration Statement or any part thereof, nor suspending or preventing the use of the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (B) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by any securities or other governmental authority (including, without limitation, the Commission), and (C) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities
(iii) the signers of said certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus, and any amendments thereof or supplements thereto (and any documents filed under the Exchange Act and deemed to be incorporated by reference into the Disclosure Package or the Prospectus), and (A) (i) as of its effective date, the Registration Statement, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; , (ii) as of the Time of Sale, neither the Disclosure Package nor any Issuer Free Writing Prospectus, when considered together with the Disclosure Package, contained any untrue statement of material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results its issue date and as of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, the Prospectus, as amended or supplemented, did not and does not include any untrue statement of material fact or omit to state a certificate material fact necessary to make the statements therein, in light of the principal executive officer and the principal financial or accounting officer of the Companycircumstances under which they were made, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b)not misleading, and confirming (B) since the accuracy Time of Sale, no event has occurred as a result of which it is necessary to amend or supplement the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Disclosure Package or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadinguntrue or misleading in any material respect; and
(iv) subsequent to the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus, there has been no material change in the financial position or results of operation of the Company and its Subsidiaries, except as set forth in the Disclosure Package and the Prospectus.
(di) On The Shares shall have been approved for quotation on the Nasdaq National Market and listed and admitted and authorized for trading on the Nasdaq National Market, subject only to official notice of issuance. Satisfactory evidence of such actions shall have been provided to you.
(j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of each Closing Date, prevent the issuance or sale of the Shares; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of each Closing Date you which would prevent the issuance or sale of the Shares.
(k) The Company shall have received prepared and filed with the Commission a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, Current Report on Form 8-K with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, including as an exhibit thereto this Agreement and the Company shall have furnished to such counsel such any other documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersrelating thereto.
(el) On each Closing Date you The NASD shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringarrangements.
(im) At the date of this Agreement, the Representatives You shall have received an agreement substantially in copies of the form of Annex A hereto signed executed Lock-Up Agreements executed by the persons each person listed on Schedule Exhibit B hereto, and such agreements Lock-Up Agreements shall be in full force and effect on as of the First Closing Date.
(jn) All proceedings taken at or prior Prior to each Closing Date Date, the Company shall have furnished to you such further information, certificates or documents as you shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in connection this Agreement shall be deemed to be in compliance with the sale of the Shares shall be reasonably satisfactory provisions hereof only if they are in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to your counsel. The Company will furnish you with such conformed copies of such opinions, certificates, letters and such counsel, other documents as you or such counsel may shall reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Offered Notes hereunder on the Closing Date are subject to the following conditionsconditions precedent:
(a) The Registration Statement All actions required to be taken and all filings required to be made by the Company under the Securities Act prior to the initial sale of the Offered Notes shall have become effective under the Act and, at been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in or the Servicer not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Underwriters, would materially adversely affect the market for the Offered Notes, (ii) the withdrawal or any downgrading in the long term counterparty rating of Nelnet below "BBB+" by S&P, or any public announcement that such organization has under surveillance or review its long term counterparty rating of Nelnet (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iii) any downgrading in the Prospectusrating of any debt securities of trusts or trust estates sponsored by the Company, except changes the Servicer or any of their affiliates by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by the Company or the Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), or (iv) any event or development which makes any statement made in the Registration Statement indicates might occur after or Prospectus untrue or which, in the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Offered Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Kutak Rock LLP, dated in its capacity as of such datecounsel to the Company, of da▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ & Markiles LLPDate, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated herebyIndenture, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinionCustodian Agreement, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in Servicing Agreement, the form Auction Agency Agreement and the Administrative Services Agreement and to the validity of Annex A hereto signed by the persons listed on Schedule B hereto, Offered Notes and such agreements related matters as you shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Daterequest. In addition, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.shall
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Education Loan Funding Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Offered Securities at the Closing Time are subject to the accuracy of the representations and warranties on the part of the Company and the Seller hereunder on the date hereof, the Initial Sale Time and at the Closing Time, the performance by the Company of its covenants and other obligations hereunder and to the satisfaction of the following conditionsfurther conditions at the Closing Time:
(a) The Registration Statement Company shall have become effective under furnish to the Act and, Representative at the Closing DateTime the opinions of Hunton & ▇▇▇▇▇▇▇▇ LLP, no stop order suspending counsel for the effectiveness Company and the Seller (and the Representative shall have received an additional executed original copy of such counsel’s legal opinion for each of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before orseveral Underwriters), addressed to the knowledge of Underwriters and dated the Company or Closing Time, and, in each case, in form and substance satisfactory to the Representatives, Underwriters and to the effect set forth in Exhibit A hereto; in rendering such opinion such counsel shall be contemplated by the Commission or any also state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, that nothing has come to their attention which would cause them to believe that (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither either the Registration Statement, any preliminary prospectus or the Prospectusamendment thereto, or any amendment or supplement document deemed to be a part thereof, at the time of any effective date applicable thereto, shall contain any contained an untrue statement of a material fact or omit omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein in the Registration Statement not misleading.; or (ii) the Prospectus, as of its date or at the Closing Time contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package as of the Initial Sale Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading (it being understood that such counsel need express no belief as to the financial statements or schedules or other financial and statistical data derived therefrom, included or incorporated by reference in the Registration Statement, the Prospectus, the Disclosure Package or any amendments or supplements thereto);
(b) The Representative shall have received copies of any opinions of counsel to the Company supplied to the rating organizations, and the Indenture Trustee, relating to certain matters with respect to the Offered Securities. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters addressed to the Underwriters;
(c) The Representative shall have received a copy of the opinion of , counsel for the Issuer, dated the Closing Date, addressed to the Underwriters or accompanied by reliance letters addressed to the Underwriters and, in each case, in form and substance satisfactory to the Underwriters;
(d) On each Closing Date you The Representative shall have received a signed opinioncopy of the opinion of , counsel for the Owner Trustee, dated the Closing Date, addressed to the Underwriters or accompanied by reliance letters addressed to the Underwriters and, in each case, in form and substance satisfactory to the Underwriters;
(e) The Securities Administrator and Master Servicer shall have furnished to the Underwriters an opinion dated the Closing Date, of counsel to the Securities Administrator and Master Servicer (who may be an employee of the Securities Administrator and Master Servicer) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters;
(f) The Underwriters have received a favorable opinion addressed to them, dated the Closing Date, from , counsel to , the Indenture Trustee, in form and substance satisfactory to the Representative and counsel to the Underwriters, to the effect that each of the Indenture and the Transfer and Servicing Agreement has been duly authorized, executed and delivered by the Indenture Trustee and constitutes the legal, valid, binding and enforceable agreement of the Indenture Trustee, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights in general and by general principles of equity regardless of whether enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by the Representative and the Indenture Trustee;
(g) The Servicer shall have furnished to the Underwriters an opinion dated the Closing Date, of counsel to the Servicer (who may be an employee of the Servicer) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters;
(h) The Credit Risk Manager shall have furnished to the Underwriters an opinion dated the Closing Date, of counsel to the Credit Risk Manager (who may be an employee of the Credit Risk Manager) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters;
(i) The Company shall have furnished to the Representative such further information, certificates, opinions and documents as the Representative may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects satisfactory in form and substance to the Representative and counsel to the Underwriters;
(j) On the date of this Agreement, the date of the Prospectus and at the Closing Time, [accounting firm] shall furnish to the Underwriters a letter or letters, dated respectively as of the respective dates of delivery date substantially in the forms of the drafts to which the Representative will have previously agreed and otherwise in form and substance satisfactory to the Representative and to counsel to the Underwriters;
(k) No amendment or supplement to the Registration Statement, the Prospectus or any shall have been filed to which the Underwriters shall have objected in writing;
(l) Prior to the Closing Time (i) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued or is in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement and the Prospectus 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, in the light of the circumstances under which they were made, not misleading; and (iv) the Disclosure Package shall not contain an untrue statement of a material fact or 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;
(m) Prior to the Closing Time, the Company shall have filed the Prospectus and each Issuer Free Writing Prospectus shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) of the Securities Act Regulations (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the Securities Act Regulations);
(n) Between the time of execution of this Agreement and the Closing Time, (i) there shall not have been any Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company, in each case, which in the Representative’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Offered Securities as contemplated by the Registration Statement, the Disclosure Package (excluding Corrective Information) and the Prospectus;
(o) Between the time of execution of this Agreement and the Closing Time, there shall not have occurred any downgrading, withdrawal or qualification, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(p) The Representative shall have received, at the Closing Time, a certificate of duly authorized officers of the Company, dated as of such dateClosing Time, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriterseffect that the signers of such certificates have carefully examined the Registration Statement, with respect to the sufficiency Prospectus, the Disclosure Package, any amendment or supplement thereto and this Agreement, and that:
(i) the representations and warranties of all corporate proceedings and other legal matters relating to the Company in this Agreement are true and correct, as if made on and as of the transactions contemplated herebydate thereof, and the Company shall have furnished has complied with all the agreements and satisfied all the conditions on its part to such counsel such documents as they may have reasonably requested for be performed or satisfied at or prior to the purpose of enabling them to pass upon such matters.date thereof;
(eii) On each Closing Date you shall no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have received been instituted or are pending or threatened under the signed opinion, dated Securities Act as of such date, of K&L Gates LLP, counsel the Closing Time;
(iii) when the Registration Statement became effective and at all times subsequent thereto up to the CompanyClosing Time, the Registration Statement, the Prospectus and the Preliminary Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement (other than any Computational Materials or ABS Term Sheets incorporated therein by reference) and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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 form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each light of the other Underwriters.
(f) At circumstances under which they were made, not misleading; the time Disclosure Package, and any amendments or supplements thereto, did not as of any Time of Sale and as of the signing Closing Time does not include any untrue statement of this Agreement and on each Closing Datea material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to in the Underwriters (with executed copies for each light of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Common Stock shall be listed on Prospectus or the NASDAQ Global Market, subject to official notice of issuance.Disclosure Package which has not been so set forth; and
(hiv) FINRA shall have confirmed that it has not raised any objection with respect subsequent to the fairness and reasonableness respective dates as of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially which information is given in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer Prospectus and sale the Disclosure Package, there has not been any Material Adverse Change.
(q) The Seller shall have furnished to the Representative a certificate, dated the Closing Date, of the Shares hereunderSeller, signed by a vice president or proceedings an assistant vice president of the Seller, to the effect that (i) the signer of such certificate has carefully examined the related Disclosure Package and the related Prospectus (other than any Computational Materials or ABS Term Sheets incorporated therein by reference) and nothing has come to the attention of such person that would lead him to believe that such Disclosure Package or the Prospectus contains any untrue statement of a material fact with respect to the Seller or the Mortgage Loans or omits to state any material fact with respect to the Seller or the Mortgage Loans required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) the Seller has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date under this Agreement, and the other Transaction Documents;
(r) The Representatives shall receive, at the Closing Date. If any Time a certificate of the Secretary of each of the Company and the Seller certifying as to (1) the Certificate of Incorporation and any amendments thereto, (2) the bylaws and any amendments thereto, and (3) resolutions of the board of directors of the such entity authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is party and, with respect to the Company, a specimen of the Offered Securities certificate;
(s) The Company shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the Disclosure Package, the representations, warranties and statements of the Company and the Seller contained herein, and the performance by the Company of its covenants contained herein, and the fulfillment of any conditions herein provided for contained herein, as of the Closing Time, as the Representative may reasonably request;
(t) On or prior to the Closing Time, there shall not have occurred any change, or any development involving a prospective change, in this Section or affecting the business or properties of the Company which in the reasonable judgment of the Representative materially impairs the investment quality of the Offered Securities so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Offered Securities as contemplated by the Disclosure Package and the Prospectus;
(u) The Offered Securities shall be rated not lower than the required ratings set forth under the heading “Ratings” in the Disclosure Package and the Prospectus Supplement, such ratings shall not have been fulfilled as rescinded and no public announcement shall have been made that any such required rating of the date indicatedOffered Securities has been placed under review (otherwise than for possible upgrading);
(v) The Ownership Certificate shall have been issued and delivered to FBR Trust Investments, all obligations of LLC;
(w) The Underwriters shall have received evidence satisfactory to the several Representative and counsel to the Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation that, on or prior to before the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, UCC-1 financing statements have been or are being filed (a) in the office of the Secretary of State of the State of Delaware reflecting the transfer of the interest of the Seller in the Mortgage Loans and the proceeds thereof to the Company, and in the office of the Secretary of State of the State of Delaware the transfer of the interest of the Company in the Mortgage Loans and the proceeds thereof to the Issuer, and the pledge of such interest to the Indenture Trustee for the benefit of the Noteholders; and
(x) The Cap Provider shall have furnished to the Underwriters an Additional opinion dated the Closing Date or otherwiseDate, of counsel to the Cap Provider (who may be an employee of the Cap Provider) addressed to the Underwriters and in form and substance satisfactory to the Representative and counsel to the Underwriters.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations obligation of the Underwriters hereunder are Underwriter to purchase and pay for the Shares as provided herein shall be subject to the accuracy of the representations and warranties of the Company, in the case of the Firm Shares, as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date), and in the case of the Option Shares, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date); to the performance by the Company of its obligations hereunder; and to the satisfaction of the following conditionsadditional conditions on or before the First Closing Date in the case of the Firm Shares and on or before the Second Closing Date in the case of the Option Shares:
(a) The Registration Statement shall have become effective under not later than 4:00 p.m. Minneapolis, Minnesota time on the Act anddate of this Agreement, at or such later date or time as shall be consented to in writing by the Closing Underwriter (the "Effective Date, "); and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares thereof shall have been issued and no proceedings for that purpose shall have been instituted before initiated or, to the knowledge of the Company Company, or the RepresentativesUnderwriter, shall be contemplated threatened by the Commission or any state securities commission or “Blue Sky” commissioner similar regulatory body; and any request of the Commission for additional information (to be included in the Registration Statement or authoritythe Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriter and Underwriter's Counsel.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) Neither the Registration Statement, each preliminary prospectus and the Prospectus and any amendments Statement or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment thereof or supplement thereto, shall contain any untrue statement of a fact which is material fact or omit omits to state any a fact which is material fact and is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that this Section 5(b) shall not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by the Underwriter specifically for use in the preparation of the Registration Statement or the Prospectus, or any such amendment or supplement.
(iiic) Subsequent to the Effective Date and prior to each Closing Date, there shall not have beenoccurred any change, since or any development involving a prospective change, which materially and adversely affects the respective dates as of which information is given, no material adverse change in the Company's condition (financial or otherwise), businessearnings, operations, properties, business or business prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration StatementStatement or Prospectus, each preliminary prospectus and which, in the Underwriter's reasonable judgment, is material and adverse and that makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus and this Agreement.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, except changes that and the Registration Statement indicates might occur after the effective date registration, authorization, issue, sale and delivery of the Registration StatementShares shall have been reasonably satisfactory to Underwriter's Counsel, and neither the Company nor any of its Subsidiaries Underwriter's Counsel shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the ordinary course of business other than as matters referred to or contemplated in the Registration Statement; and this Section.
(ive) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at On each Closing Date, a certificate the Underwriter shall have received the opinion of the principal executive officer ▇▇▇▇▇▇ and the principal financial or accounting officer of ▇▇▇▇▇▇, P.A., counsel for the Company, dated as of such Closing Date, evidencing compliance with satisfactory in form and substance to the provisions Underwriter and Underwriter's Counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of this Subsection 5(bthe jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement and Prospectus.
(ii) The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), and confirming the accuracy earnings, operations or business of the representations Company. To the best of such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity.
(iii) The capital stock of the Company set forth conforms as to legal matters to the description thereof contained in Section 1 hereof the Prospectus under the caption "Description of Securities." The issued and confirming that all conditions set forth herein to be met by outstanding shares of capital stock of the Company have been met as duly and validly issued and are fully paid and non-assessable, and the holders thereof are not subject to any personal liability solely by reason of being such dateholders.
(civ) The Shares to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and non-assessable, and the holders thereof will not be subject to personal liability solely by reason of being such holders. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of capital stock pursuant to the Company's articles of incorporation, bylaws or any agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound. To the best of such counsel's knowledge, except as set forth in the Prospectus, neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of capital stock or other securities of the Company and no such rights exist, other than those rights that have been waived prior to the date hereof. To the best of such counsel's knowledge, except as described in the Registration Statement and Prospectus, there are no options, warrants, agreements, contracts or rights in existence to purchase or acquire from the Company any shares of capital stock of the Company.
(v) The Underwriter's Warrants and the Warrant Shares have been duly authorized. The Underwriter's Warrants, when issued and delivered to the Underwriter, will constitute valid and binding obligations of the Company in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the rights of creditors generally and by judicial limitations and the right of specific performance. The Warrant Shares, when issued in accordance with the terms of this Agreement and pursuant to the Underwriter's Warrants, will be fully paid and non-assessable and subject to no preemptive rights or similar rights on the part of any person or entity. A sufficient number of shares of Common Stock of the Company has been reserved for issuance by the Company upon exercise of the Underwriter's Warrants.
(vi) The Company has the requisite corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriter the Shares to be issued and sold by it hereunder. This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Underwriter, is a valid, legal and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification and contribution provisions may be limited by applicable law or the public policies underlying such law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(vii) The Registration Statement has become effective under the Securities Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is pending or threatened under the Securities Act.
(viii) The Registration Statement and the Prospectus, and each amendment thereof or supplement thereto (other than the financial statements, including the notes thereto and the supporting schedules, and other financial, numerical, statistical and accounting data derived therefrom, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(ix) The form of certificates evidencing the Common Stock and filed as an exhibit to the Registration Statement complies with Minnesota law.
(x) The description in the Registration Statement and the Prospectus of the Company's articles of incorporation and bylaws and of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be presented by the Securities Act and the applicable Rules and Regulations; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any agreements, contracts, leases or documents of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required.
(xi) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated (other than performance of the Company's indemnification and contribution obligations hereunder, concerning which no opinion need be expressed) do not result in any violation of the Company's articles of incorporation or bylaws or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other material agreement or instrument known to such counsel to which the Company is a party or by which its properties are bound, or any applicable statute, rule or regulation known to such counsel or, to the best of such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or other any of its material properties or operations.
(xii) No Underwriter shall consent, approval, authorization or order of, or filing with, or qualification with, any court, government or governmental agency or body is necessary in connection with the execution, delivery and performance of this Agreement or for the execution, delivery and performance of this Agreement or for the consummation of the transactions herein contemplated, except such as have discovered been obtained under the Securities Act or such as may be required under state or other securities or Blue Sky laws in connection with the purchase and disclosed to the distribution of the Shares by the Underwriter.
(xiii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company prior of a character required to be disclosed in the Registration Statement or the Prospectus by the Securities Act or the Rules and Regulations, other than those described therein.
(xiv) To the best of such counsel's knowledge, the Company is not presently (A) in violation of its articles of incorporation or bylaws, (B) in material breach or violation of any Closing Date that applicable statute, rule or regulation known to such counsel or any order, writ or decree of any court or governmental agency or body, or (C) in breach of or otherwise in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, loan agreement or any other material contract, lease or other instrument to which the Company is subject or by which it may be bound, or to which any of the material assets or property of the Company is subject.
(xv) To the best of such counsel's knowledge, and except as described in the Registration Statement, the Company holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any preliminary prospectus government or self-regulatory body required for the Prospectus conduct of its business, and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect.
(xvi) To the best of such counsel's knowledge, after due inquiry, the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any trade marks, service marks, trade names, or copyrights which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company.
(xvii) To the best of such counsel's knowledge, after due inquiry, the Company owns, or possesses adequate rights to use, all service marks, trade names, copyrights, trade marks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus.
(xviii) On the basis of information obtained as a result of discussions and meetings with officers and other employees or representatives of the Company, discussions with representatives of the independent public accountants for the Company, in connection with the preparation of the Registration Statement and the Prospectus, and the examination of other information and documents requested by such counsel, nothing has come to such counsel's attention that has caused them to believe that the Registration Statement and any amendment or supplement theretothereof, contains an at the time it became effective and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omits omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, and any amendment or supplement thereto, at the first date of its issuance and up to and at all times subsequent thereto up to and on that Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may further state that in making the foregoing comments, such counsel does not intend them to include or cover the financial statements and notes thereto and related schedules and other financial, numerical, statistical and accounting data contained or omitted from the Registration Statement and any amendment or supplement thereto and the Prospectus. Counsel rendering the foregoing opinion may rely as to questions of law not involving the laws of the United States or the State of Minnesota upon opinions of local counsel, and, as to questions of fact, upon representations or certificates of officers of the Company and of government officials, in which case their opinion is to state the extent of such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Underwriter and to Underwriter's Counsel.
(df) On each Closing Date you The Underwriter shall have received a signed opinionfrom Robins, dated as of such dateKaplan, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCL.L.P., addressed to Underwriter's Counsel, such opinion or opinions as the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel Underwriter may reasonably request in connection with each preliminary prospectusrequire, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled dated as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date and the Second Closing Date, an Additional Closing Date or otherwise.which are satisfact
Appears in 1 contract
Sources: Underwriting Agreement (Founders Food & Firkins LTD /Mn)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy, when made and on the applicable Delivery Date, of the representations and warranties of the General Partner, the Partnership and the Selling Unitholder contained herein, to the performance by the General Partner, the Partnership and the Selling Unitholder of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statement Prospectus shall have become effective under been timely filed with the Act and, at Commission in accordance with Section 6(a)(i) hereof; the Closing Date, Partnership shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the qualifications use of the Shares Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding for that such purpose shall have been instituted before or, initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the General Partner or the Partnership of any objection to the knowledge use of the Company or form of the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityRegistration Statement.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company Partnership on or prior to any Closing such Delivery Date that the Registration Statement, any preliminary prospectus as of the Effective Date, the Prospectus, as of its date or on the applicable Delivery Date, or the Prospectus or Pricing Disclosure Package, as of the Applicable Time, in each case including any amendment or supplement thereto, contains an untrue statement of a fact that that, in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect is material or omits to state a fact that, in the reasonable opinion of such counsel, is material and (i) solely in the case of the Registration Statement is required to be stated therein or (ii) is necessary to make the statements therein not misleading (in the case of the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made).
(c) All corporate, partnership and limited liability company proceedings and other legal matters incident to the sufficiency authorization, form and validity of this Agreement, the Units, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated herebyhereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall have furnished to the Representatives its written opinion, as counsel to the Partnership, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B.
(e) Debevoise & ▇▇▇▇▇▇▇▇ LLP shall have furnished to the Representatives its written opinion, as counsel to the Selling Unitholder, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the sale of the Units and other related matters as the Representatives may reasonably require, and the Partnership shall have furnished to such counsel such documents as they may have reasonably requested request for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(fg) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date execution of this Agreement, the Representatives shall have received an agreement substantially from Deloitte & Touche LLP a letter (the “initial 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 within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X 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, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to the Partnership’s financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Deloitte & Touche LLP a letter (the “bring-down letter”), in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of Annex A hereto signed the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the Partnership’s financial information and other matters covered by the persons listed on Schedule B heretoinitial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(i) At the time of execution of this Agreement, the Representatives shall have received from KPMG Accountants N.V. a letter (the “BORCO initial letter”), in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent auditors within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X 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, as of a recent date), the conclusions and findings of such agreements shall be firm with respect to FR Borco Topco, L.P.’s financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in full force and effect on the Closing Dateconnection with registered public offerings.
(j) All proceedings taken The Representatives shall have received from KPMG Accountants N.V. a letter (the “BORCO bring-down letter”), in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent auditors within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the BORCO bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a recent date), the conclusions and findings of such firm with respect to FR Borco Topco, L.P.’s financial information and other matters covered by the BORCO initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the BORCO initial letter.
(k) The General Partner shall have furnished to the Representatives a certificate, dated such Delivery Date, of the Chief Executive Officer or any Vice President and the Chief Financial Officer of the General Partner stating that:
(i) The representations, warranties and agreements of the General Partner and the Partnership in Section 1 are true and correct on and as of such Delivery Date, and the General Partner and the Partnership have complied with all their respective agreements contained herein and satisfied all the conditions on their respective parts to be performed or satisfied hereunder at or prior to each Closing Date in connection with such Delivery Date;
(ii) No stop order suspending the sale effectiveness of the Shares shall be reasonably satisfactory in form Registration Statement has been issued; and substance to you and counsel no proceedings for that purpose have been instituted or, to the several Underwritersknowledge of such officers, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall threatened; and
(iii) They have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, carefully examined the Registration Statement, the offer Prospectus and sale the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Shares hereunderEffective Date, (2) the Prospectus, as of its date and on such Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact (i) solely in the case of the Registration Statement required to be stated therein or (ii) necessary to make the statements therein not misleading (in the case of the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made), and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(l) The Selling Unitholder shall have furnished to the Representatives a certificate, dated such Delivery Date, signed by, or proceedings on behalf of, the Selling Unitholder stating that the representations, warranties and agreements of the Selling Unitholder in Section 2 hereof are true and correct on and as of such Delivery Date, and that the Selling Unitholder has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date.
(m) Subsequent to the Closing Date. If execution and delivery of this Agreement (i) neither the Partnership nor any of the conditions herein provided for in this Section its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) there shall not have been fulfilled as any adverse change in the equity or long-term debt of the date indicatedPartnership or any of its subsidiaries or any adverse change, all obligations or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, unitholders’ equity, properties, management, business or prospects of the several Underwriters under Partnership and its subsidiaries taken as a whole, 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 public offering or the delivery of the Units being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(n) Subsequent to the execution and delivery of this Agreement may be cancelled (i) no downgrading shall have occurred in the rating accorded the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as that term is defined for purposes of Rule 436(g)(2) of the Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Partnership’s debt securities; provided, however, that this paragraph (n) shall not apply to any downgrade of not more than one ratings notch or level contemplated by an existing notice of surveillance or review.
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NASDAQ Stock Market or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited, the settlement of such trading generally shall have been materially disrupted, or minimum prices shall have been established on any such exchange or market by the Representatives Commission, by notifying such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the Company 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) such cancellation 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 or prior the financial markets in the United States shall be such), as to make it, in the applicable Closing Date. The Representatives may in their sole discretion waive on behalf judgment of the Underwriters Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Units being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with any conditions the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseUnderwriters.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the several Underwriters hereunder under this Agreement are subject to the performance by the Company on and as of the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, of its covenants and agreements hereunder, and the following additional conditions:
(a) The Registration Statement shall have become effective under the Act andeffective, at the Closing Date, and no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued issued, and no proceedings for that purpose shall have been instituted before or threatened or, to the knowledge of the Company or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing Date, The Underwriters shall be satisfied that (i) the representations and warranties as of the Company contained Effective Date, the statements made in this Agreement shall be the Registration Statement and the Prospectus were true and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or Statement nor the Prospectus, or any amendment or supplement thereto, shall contain any untrue statement of a material fact or omit Prospectus omitted to state any material a fact required to be stated therein or is necessary to make the statements therein not misleading; , (ii) since the Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Prospectus which has not been set forth in an effective supplement or amendment, (iii) there shall have been, since the respective dates as of which information is givengiven in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, no there has not been any material adverse change or any development involving a prospective material adverse change in the condition (financial or otherwise), business, prospects properties, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from that set forth transactions in the Registration Statementordinary course of business, each preliminary prospectus and the Prospectussince such dates, except changes that in the Registration Statement indicates might occur after the effective date ordinary course of the Registration Statementbusiness, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or subsidiaries has entered into any material transaction, contract or agreement transaction not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; Statement in the form in which it originally became effective and the Prospectus contained therein, (iv) except as set forth neither the Company nor any of its subsidiaries has any material contingent obligations which are not disclosed in each preliminary prospectus the Registration Statement and the Prospectus, no action, suit (v) there are not pending or proceeding at law or in equity shall be pending or, known threatened legal proceedings to the Company’ knowledge, threatened against which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against subsidiaries is a party or of which property of the Company or any of its Subsidiaries before or by any commission, board or administrative agency subsidiaries is subject which are material and which are not disclosed in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer Registration Statement and the principal financial Prospectus, (vi) there are not any franchises, contracts, leases or accounting officer of other documents which are required to be filed as exhibits to the Company, dated Registration Statement which have not been filed as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b)required, and confirming the accuracy of (vii) the representations and warranties of the Company set forth herein are true and correct in Section 1 hereof and confirming that all conditions set forth herein material respects as of the Closing Date or any later date on which Option Stock is to be met by purchased, as the Company have been met as of such datecase may be.
(c) No Underwriter On or prior to the Closing Date, the legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements contained therein), shall have discovered and disclosed been approved at or prior to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, by ▇▇▇▇▇▇▇▇ & Markiles ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters. The Underwriters shall have received from counsel to the several Underwriters, such opinion or opinions with respect to the sufficiency issuance and sale of all corporate proceedings the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents information as they may have reasonably requested for the purpose of enabling request to enable them to pass upon such matters.
(ed) On each the Closing Date you Date, and if Option Stock is purchased at any date after the Closing Date, on such later date, the Underwriters shall have received an opinion addressed to the signed opinionUnderwriters, dated as the Closing Date or, if related to the later sale of Option Stock, such later date, of K&L Gates Bay Venture Counsel, LLP, counsel to the Company, substantially to the effect set forth in form EXHIBIT A hereto, and of Fischer, Behar, Chen & Co., Israeli counsel to the Company, substantially to the effect set forth in EXHIBIT B hereto. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel reasonably satisfactory deems proper, and subject to counsel for the Underwritersprovisions of paragraph (c) above, together with signed or photostatic copies thereof for each on certificates of responsible officers of the other UnderwritersCompany and public officials. References to the Registration Statement and the Prospectus in this paragraph (d) shall include any amendment or supplement thereto at the date of such opinion.
(fe) At the time of the signing of this Agreement and on each Closing Date, you You shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇▇▇▇▇ a letter or letters, addressed to the Underwriters (with executed copies for each and the Board of Directors of the UnderwritersCompany and dated the Closing Date and any later date on which Option Stock is purchased, confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder and based upon the procedures described in their letter delivered to the Underwriters concurrently with the execution of this Agreement (the "Original Letter"), but carried out to a date not more than three business days prior to the Closing Date or such later date on which Option Stock is purchased (i) confirming, to the extent true, that the statements and conclusions set forth in the form heretofore approved Original Letter are accurate as of the Closing Date or such later date, as the case may be, and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter which are necessary to reflect any changes in the facts described in the Original Letter since the date of the Original Letter or to reflect the availability of more recent financial statements, data or information. The letters shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company or any of its subsidiaries, which in your sole judgment, makes it impractical or inadvisable to proceed with the public offering of the Shares or the purchase of the Option Stock as contemplated by counsel for the UnderwritersProspectus.
(f) You shall have from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, a letter stating that their review of the Company's internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company's financial statements as at December 31, 2000, did not disclose any weakness in internal controls that they considered to be material weaknesses.
(g) As On the Closing Date, and on any later date on which Option Stock is purchased, you shall have received a certificate, dated the Closing Date or such later date, as the case may be, signed by the Chief Executive Officer and Chief Financial Officer of the effective date Company stating that the respective signers of said certificate have carefully examined the Registration StatementStatement in the form in which it originally became effective and the Prospectus contained therein and any amendments or supplements thereto and this Agreement, and, to their knowledge that the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice statements included in paragraph (b) of issuancethis Section 7 are true and correct.
(h) FINRA You shall have confirmed that it has not raised any objection with respect to been furnished evidence in usual written or telegraphic form from the fairness and reasonableness appropriate authorities of the underwriting terms and arrangements for this offeringseveral jurisdictions, or other evidence satisfactory to you, of the qualification referred to in paragraph (f) of Section 6 hereof.
(i) At Prior to the date Closing Date, the Shares shall have been duly authorized for inclusion on the Nasdaq National Market upon official notice of issuance. In case any of the conditions specified in this Section 7 shall not be fulfilled, this Agreement may be terminated by you by giving notice to the Company. Any such termination shall be without liability of the Company to the Underwriters and without liability of the Underwriters to the Company; PROVIDED, HOWEVER, that (i) in the event of such termination, the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses incident to the performance of the obligations of the Company under this Agreement, including all costs and expenses referred to in paragraphs (g) and (h) of Section 6 hereof, and (ii) if this Agreement is terminated by you because of any refusal, inability or failure on the Representatives part of the Company to perform any agreement herein, to fulfill any of the conditions herein, or to comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have received an agreement substantially in the form of Annex A hereto signed been incurred by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date them in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwisetransactions contemplated hereby.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development involving a prospective change, in 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompany, taken as a wholethe Sellers, from that set forth in the Servicer, UNIPAC or InTuition not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementRepresentative, and neither would materially adversely affect the Company nor market for the Notes, (ii) any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not downgrading in the ordinary course rating of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer debt securities of the Company, dated as a Seller, the Servicer, UNIPAC or InTuition by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, a Seller, the Servicer, UNIPAC or InTuition (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such Closing Date, evidencing compliance with the provisions of this Subsection 5(brating), and confirming or (iii) any event or development which makes any statement made in the accuracy of Registration Statement or Prospectus untrue or which, in the representations opinion of the Company set forth and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as of such date, an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇, ▇▇▇in its capacity as counsel to the Company, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the status of the Company, to each of the Purchase Agreements, Servicing Agreement, Indenture, Auction Agency Agreement, Broker-Dealer Agreements and this Agreement and to the validity of the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of ▇▇▇▇▇ & Markiles ▇▇▇▇ LLP, in its capacity as counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably and substance satisfactory to counsel for the Underwritersyou and your counsel, together with signed or photostatic copies thereof for each of the concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel Sellers to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Student Loan Corp- 2)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are to purchase and pay for the Securities, and Warrants, if any, as provided herein shall be subject to the accuracy, as of the date hereof and the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) The No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your reasonable satisfaction.
(b) No Underwriter shall have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in your opinion is material, or omits to state a fact which in your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material adverse change, on a consolidated basis, in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, or any material adverse change, or any development involving a prospective adverse change in the condition (financial or other), business, net worth or results of operations of the Company and its subsidiaries, taken as a whole, or a downgrade in the rating assigned to any securities of the Company which, in any such case, is, in your reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the completion of the sale of and payment for the Securities, and Warrants, if any, on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received the opinion of the General Counsel or an Assistant General Counsel to the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of its jurisdiction of incorporation; the Company's subsidiaries have been duly incorporated and are existing corporations in good standing under the laws of their respective jurisdictions of incorporation; each of the Company and its subsidiaries has full power and authority (corporate and other) to conduct its business as described in the Registration Statement and Prospectus; and each of the Company and its subsidiaries is duly qualified to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification, except to the extent that the failure to so qualify would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries taken as a whole; and all of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and the Company owns all outstanding shares of capital stock of each significant subsidiary (as defined in Rule 405 under the Act) (except as otherwise stated in the Registration Statement) in each such case subject to no security interest, other encumbrance, or adverse claim;
(ii) The Indenture, and the Warrant Agreement, if any, have been duly authorized, executed, delivered, and the Indenture has been qualified under the Trust Indenture Act; the Indenture, and the Warrant Agreement, if any, constitute valid and legally binding instruments in accordance with their terms; the Securities, the Warrants, if any, and the Warrant Securities, if any, have been duly authorized, and the Securities, and Warrants, if any, delivered on the Closing Date have been duly executed, authenticated, issued and delivered; the Securities, and Warrants, if any, delivered on the Closing Date constitute, any Contract Securities when executed, authenticated, issued and delivered in accordance with the Delayed Delivery Contracts, if any, the Warrant Agreement, if any, and the Indenture will constitute, and the Warrant Securities, if any, when executed, authenticated, issued and delivered pursuant to the Warrant Agreement, if any, and the Indenture will constitute, valid and legally binding obligations of the Company in accordance with their terms and the terms of the Indenture, and the Warrant Agreement, if any, 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; and the Securities, Warrants, if any, and Warrant Securities, if any, conform to the description thereof in the Prospectus;
(iii) The Registration Statement has become effective under the Act and, at and to the Closing Date, best knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have has been issued and no proceedings proceeding for that purpose shall have has been instituted before or, to the knowledge of the Company or the Representativessuch counsel, shall be contemplated threatened by the Commission or any state securities or “Blue Sky” commissioner or authority.Commission;
(biv) At each Closing Date, (i) the representations and warranties Each part of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of registration statement, when such Closing Date part became effective, and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus Prospectus, and any amendments amendment or supplements thereto shall supplement thereto, complied as to form in all material respects conform to with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; such counsel has no reason to believe that either any part of the registration statement when such part became effective, and neither or the Registration Statement, any preliminary prospectus or Statement and the Prospectus, Prospectus or any amendment or supplement thereto, shall contain any thereto contained an untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; and the documents incorporated by reference in the Registration Statement or Prospectus, when they became effective under the Act or were filed with the Commission under the Exchange Act, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; it being understood that such counsel need express no opinion as to the financial statements or other financial data included in any of the documents mentioned in this clause;
(iiiv) there The descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus which are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus (or then required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; the performance thereof and the consummation of the transactions therein contemplated (including, without limitation, the issuance of the Warrant Securities, if any, upon the exercise of the Warrants, if any) will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it is bound or to which any of the property of the Company or any of its subsidiaries is subject, the Company's charter or by-laws, or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement and any Delayed Delivery Contracts in connection with the issuance or sale of the Securities (including the Contract Securities, if any), Warrants, if any, or Warrant Securities, if any, by the Company, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under state securities laws in connection with the sale of the Securities, Warrants, if any, and Warrant Securities, if any.
(e) You shall have beenreceived from LeBoeuf, Lamb, Gree▇▇ & MacR▇▇, ▇.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Warrants, if any, the Warrant Securities, if any, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. In rendering their opinion, such counsel may rely on certificates of the Trustee under the Indenture as to the execution and authentication of the Securities.
(f) You shall have received, on the Closing Date, a letter dated the Closing Date from the independent accountants of the Company who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, confirming that they are independent auditors with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given, no material adverse change given in the condition Registration Statement and Prospectus, as of a date not more than three business days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters concerning the Company, in form and substance satisfactory to the Representatives and as to such other matters as the Representatives may reasonably request.
(g) You shall have received from the Company a certificate, signed by the Chairman of the Board, a Vice Chairman, the President or a Vice President, and by the principal financial or otherwise)accounting officer, businessdated the Closing Date, prospects or results to the effect that, to the best of operations their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and its subsidiariescorrect, taken as a wholeif made at and as of the Closing Date, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement indicates might occur after has been issued, and no proceeding for that purpose has been instituted or is threatened by the effective Commission; and
(iii) Since the date of the Registration Statementthis Agreement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, there has occurred no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be event required to be set forth in an amendment or supplement to the Registration StatementStatement or Prospectus which has not been so set forth, and there has been no proceedings shall document required to be pending or, filed under the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or be incorporated by any commission, board or administrative agency reference in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming Prospectus that all conditions set forth herein to be met by the Company have has not been met as of such dateso filed.
(ch) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the The Company shall have furnished to you such counsel such further certificates and documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinionreasonably requested. All such opinions, dated as of such datecertificates, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the letters and other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall documents will be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale of the Shares shall be reasonably satisfactory provisions hereof only if they are in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you. The Company will furnish you with such conformed copies of such opinions, certificates, letters and such counsel, other documents as you or such counsel may shall reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Sources: Underwriting Agreement (Associates Corporation of North America)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the Registration Statement, which in the opinion of the Representative, would materially adversely affect the market for the Notes , (ii) any downgrading in the rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth or (iii) any event or development which makes any statement made in the Registration Statement, each preliminary prospectus and Disclosure Package or Prospectus untrue or which, in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth change in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company Disclosure Package or any of its Subsidiaries before or by any commission, board or administrative agency Prospectus in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, Disclosure Package or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes .
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Cadwalader, dated as of such dateWickersham & Taft LLP, of or other counsel satisfactory to you, dat▇▇ ▇▇▇ ▇▇▇sin▇ ▇▇▇te, ▇▇▇▇▇▇▇▇ & Markiles LLP, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Company Eligible Lender Trust Agreement, the Indenture, the Trust Agreement, and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, an opinion addressed to the Underwriters (with executed copies for each you of the Underwriters) Cadwalader, Wickersham & Taft LLP, in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.its capacity as
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2006-2)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by Collegiate Funding under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Collegiate Funding or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of Collegiate Funding, the Company and its subsidiariesServicer, taken as a whole, from that set forth in CFS or the Subservicer not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Representatives, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of trusts sponsored by Collegiate Funding, the Servicer, CFS or the Subservicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by Collegiate Funding, the Servicer, CFS or the Subservicer (other than an announcement with positive implications of a possible upgrading, and the Prospectusno implication of a possible downgrading, except changes that of such rating), or (iii) any event or development which makes any statement made in the Registration Statement indicates might occur after the effective date of the Registration Statementor Prospectus untrue or which, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course opinion of business other than as referred Collegiate Funding and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as an opinion addressed to you of such date, of ▇&Stroock & Stroock & ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPLLP ("SSL"), in its capacity as counsel to the several UnderwritersCompany, dated the Closing Date, in form and substance satisfactory to you and your counsel with respect to the sufficiency Basic Documents to which Collegiate Funding is a party and to the validity of all corporate proceedings the Notes and such related matters as you shall reasonably request. In addition, you shall have received an opinion addressed to you of SSL, in its capacity as counsel for the Company, in form and substance satisfactory to you and your counsel, concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other legal matters relating issues with respect to this Agreement the transfer of the Financed Eligible Loans from CFS to Collegiate Funding, from Collegiate Funding to the Company and from the Company to the Trustee.
(d) You shall have received an opinion addressed to you of SSL, in its capacity as counsel for Collegiate Funding and the transactions contemplated herebyCompany, dated the Closing Date, in form and substance satisfactory to you and your counsel to the Company shall effect that the statements in the Prospectus under the headings "Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have furnished to been prepared or reviewed by such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such mattersand are correct in all material respects.
(e) On each Closing Date you You shall have received the signed opinionan opinion addressed to you of SSL, dated in its capacity as of such date, of K&L Gates LLP, counsel to for Collegiate Funding and the Company, dated the Closing Date, in form reasonably and substance satisfactory to you and your counsel for with respect to the Underwriters, together with signed or photostatic copies thereof for each character of the other UnderwritersNotes for federal tax purposes.
(f) At You shall have received an opinion addressed to you of ______________, in its capacity as Underwriters' Counsel, dated the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed in form and substance satisfactory to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwritersyou.
(g) As You shall have received an opinion addressed to you of SSL, in its capacity as counsel for Collegiate Funding and the effective date of Company, dated the Closing Date in form and substance satisfactory to you and your counsel with respect to the Prospectus and the Registration StatementStatement and certain matters arising under the Trust Indenture Act of 1939, as amended, and the Common Stock shall be listed on the NASDAQ Global MarketInvestment Company Act of 1940, subject to official notice of issuanceas amended.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives You shall have received an agreement substantially in the form opinions addressed to you of Annex A hereto signed by the persons listed on Schedule B hereto_____________ as counsel to Collegiate Servicing, Collegiate Administration, Collegiate Funding and such agreements shall be in full force and effect on CFS, each dated the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of Collegiate Servicing, Collegiate Administration, CFS and Collegiate Funding is a limited liability company, in good standing under the laws of its respective state of organization; each having the full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under each of the Basic Documents to which it is a party.
(ii) Each Basic Document to which each of Collegiate Servicing, Collegiate Funding, Collegiate Administration and CFS is a party has been duly authorized, executed and delivered by such party and each such agreement is the legal, valid and binding obligation of such party, enforceable against it, in accordance with its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(iii) Neither the execution and delivery by Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS, of the Basic Documents to which it is a party, nor the consummation by such parties of the transactions contemplated therein nor the fulfillment of the terms thereof by such parties will conflict with, result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the limited liability company agreement of Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS or of any material indenture or other material agreement or instrument to which Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS is a party or by which Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS of any court, regulatory body, administrative agency or governmental body having jurisdiction over Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS.
(iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry and reasonable investigation, threatened against Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS before or by any governmental authority that might materially and adversely affect the performance by Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS of its obligations under, or the validity or enforceability of, any Basic Documents to which it is a party.
(v) No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS of any Basic Document to which it is a party.
(i) You shall have received opinions addressed to you of _________________, in their capacity as counsel to the several UnderwritersDelaware Trustee, and as Delaware counsel to the Company and Collegiate Funding, dated the Closing Date and in form and substance satisfactory to you and your counsel.
(j) You shall have received an opinion addressed to you of counsel to the Trustee and the Eligible Lender Trustee, dated the Closing Date and in form and substance satisfactory to you and your counsel.
(k) You shall have received certificates addressed to you dated the Closing Date of any two of the executive officers of Collegiate Funding, the Company, Collegiate Servicing and Collegiate Administration in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of Collegiate Funding, the Company, Collegiate Servicing and Collegiate Administration, as applicable, contained in each of the Basic Documents to which it is a party are true and correct in all material respects, that each of Collegiate Funding, the Company, Collegiate Servicing and Collegiate Administration has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at the time of signing this Agreement and on or prior to the Closing Date, you (ii) that each of Collegiate Funding, the Company, Collegiate Servicing and Collegiate Administration has reviewed the Prospectus and that the information therein regarding Collegiate Funding, the Company, Collegiate Servicing and Collegiate Administration, as applicable, is fair and accurate in all material respects, and (iii) since the date set forth in such counsel certificate, except as may be disclosed in the Prospectus, no material adverse change or any development involving a prospective material adverse change, in or affecting particularly the business or properties of Collegiate Funding, the Company, Collegiate Servicing and Collegiate Administration, as applicable, has occurred.
(l) You shall have received each evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware reflecting the grant of the security interest by the Company in the Financed Eligible Loans and every additional document, letter, opinion, the proceeds thereof to the Trustee.
(m) You shall have received a certificate or other item addressed to you dated the Closing Date from a responsible officer acceptable to you of the Eligible Lender Trustee in form and executed in a manner reasonably substance satisfactory to you and such counsel, as you or such your counsel may reasonably request in connection with and to which shall be attached each preliminary prospectus, Guarantee Agreement.
(n) The Underwriters shall have received on the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at Closing Date from [Accountants] a letter dated the Closing Date. If any , and in form and substance satisfactory to the Representatives, to the effect that they have carried out certain specified procedures, not constituting an audit, with respect to certain information regarding the Financed Eligible Loans and setting forth the results of such specified procedures.
(o) All the conditions herein provided for representations and warranties of each of Collegiate Funding, Collegiate Servicing, Collegiate Administration, CFS or the Company contained in this Section Agreement and the other Basic Documents to which it is a party shall not have been fulfilled be true and correct in all material respects on and as of the date indicated, all obligations hereof and on and as of the several Closing Date as if made on and as of the Closing Date and the Underwriters under shall have received certificates, dated the Closing Date and signed by an executive officer of Collegiate Funding to the effect set forth in this Agreement may be cancelled by Section 6(p) and in Section 6(q) hereof.
(p) Collegiate Funding, Collegiate Servicing, the Representatives by notifying the Company of such cancellation on Company, Collegiate Administration or CFS shall not have failed at or prior to the applicable Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date. .
(q) The Representatives may in their sole discretion waive on behalf Underwriters shall have received by instrument dated the Closing Date (at the option of the Underwriters compliance with any conditions Representatives), in lieu of or in addition to the obligations legal opinions referred to in this Section 6, the right to rely on opinions provided by such counsel and all other counsel under the terms of the Underwriters hereunderBasic Documents.
(r) Each class of Class A Notes shall be rated "AAA", whether in respect "AAA" and "Aaa", respectively, by [Fitch, Inc.] ("[Fitch]"), [Standard & Poor's Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies] ("[S&P]"), and [▇▇▇▇▇'▇ Investors Services], Inc. ("[Moody's]"), the Class B Notes shall be rated "A", "A-" and "A2", or higher, by [Fitch], [S&P] and [▇▇▇▇▇'▇], respectively, and that neither [Fitch], [S&P] nor [Moody's] have placed the Notes under surveillance or review with possible negative implications.
(s) You shall have received a certificate addressed to you dated the Closing Date of the First Closing DateGuaranty Agency to the effect that (i) the information in the Prospectus with respect to the Guaranty Agency is true and correct and is fair and accurate in all material respects and (ii) that since the date of the Prospectus, an Additional Closing Date no material adverse change in or otherwiseaffecting the business or properties of the Guarantee Agency has occurred.
(t) You shall have received such other opinions, certificates and documents as are required under the Indenture as a condition to the issuance of the Notes. Collegiate Funding will provide or cause to be provided to you such conformed copies of such of the foregoing opinions, notes, letters and documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Collegiate Funding of Delaware LLC)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Company under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company Company, SLC, SLC Receivables, the Servicer or the Sub- Servicer not contemplated by the Registration Statement, which in the opinion of the Representative, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth or (iii) any event or development which makes any statement made in the Registration Statement, each preliminary prospectus and Disclosure Package or Prospectus untrue or which, in the Prospectus, except changes that the Registration Statement indicates might occur after the effective date opinion of the Registration StatementCompany and its counsel or the Underwriters and their counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth change in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company Disclosure Package or any of its Subsidiaries before or by any commission, board or administrative agency Prospectus in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, Disclosure Package or Prospectus to reflect such event or development would, in the opinion of the Representative, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Cadwalader, dated as of such dateWickersham & Taft LLP, of ▇▇▇▇▇▇or other counsel satisfactory to you, ▇▇▇▇▇da▇▇▇ & Markiles LLP▇▇▇ ▇▇osi▇▇ ▇ate, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency status of all corporate proceedings the Company, to each of the Sale Agreements, the Servicing Agreement, the Administration Agreement, the Company Eligible Lender Trust Agreement, the Indenture, the Trust Agreement, and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Cadwalader, datedWickersham & Taft LLP, respectivelyin its capacity as counsel for the Compa▇▇, as of each such date, from ▇▇ ▇▇▇▇▇▇m a▇▇ & Company Certified Public Accountants PC▇ubstance satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non- consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Trust Student Loans from the date of this AgreementSLC to SLC Receivables, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel SLC Receivables to the several Underwriters, Company and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying from the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseIndenture Trustee.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2006-1)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective under the Act and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company or the RepresentativesRepresentative, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred to or contemplated in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives Representative is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLPTroyGould PC, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCMaloneBailey, LLP, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global MarketNYSE Amex, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (China Century Dragon Media, Inc.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase and pay for the Purchased Securities, are subject to the following conditions:
(a) The Registration Statement shall have become effective under Upon the Act and, execution of this Agreement by the Partnership (or at such later time acceptable to the Underwriters) and on the Closing Date, no the Underwriters shall have received from the independent accountants of the Partnership who have certified the financial statements of the Partnership and its subsidiaries included or incorporated by reference in the Registration Statement signed letters dated the respective dates of delivery, in form and substance satisfactory to the Underwriters.
(b) No stop order suspending the effectiveness of the Registration Statement or under the qualifications of the Shares Securities Act shall have been issued and no proceedings for that such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been instituted before or, complied with to the knowledge reasonable satisfaction of the Company or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityUnderwriters.
(b) At each Closing Date, (i) The Partnership and its subsidiaries shall not have sustained since the representations and warranties date of the Company contained latest audited financial statements included or incorporated by reference in this Agreement shall the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that could reasonably be true expected to have a Material Adverse Effect, and correct with the same effect as if made on and as of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectus, or 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; (iii) there shall have been, since the respective dates as of which information is givengiven in the Prospectus, no there shall not have been any change, or any development involving a prospective change, in the partnership interests, capital stock or long term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the condition (general affairs, management, financial or otherwise), business, prospects position or results of operations of the Partnership and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, in the case of either clause (i) or this clause (ii) other than as set forth in or contemplated by the Registration Statement, as amended or supplemented through the date of this Agreement, and the Prospectus, as amended or supplemented by the Prospectus Supplement dated the date of this Agreement, if in the judgment of ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇▇, Sachs & Co. any such change makes it impracticable or inadvisable to consummate the sale and delivery of the Purchased Securities as contemplated in the Prospectus.
(d) Subsequent to the execution of this Agreement, there shall not have occurred any of the following 1) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; 2)a suspension in trading in the Partnership’s securities on the New York Stock Exchange; 3)a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; 4) the outbreak or escalation of major hostilities involving the United States or the declaration by the United States of a national emergency or war or 5) 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 clause (iv) or (v) in the judgment of ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇▇, Sachs & Co. makes it impracticable or inadvisable to proceed with the public offering or the sale of and payment for the Purchased Securities on the terms and in the manner contemplated in the Prospectus.
(e) The Partnership has obtained and delivered to the Underwriters executed copies of lock-up agreements satisfactory to the Underwriters from 6)(i) the executive officers and directors of the General Partner, 7)(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., and (iii) the General Partner.
(f) The representations and warranties of the Partnership contained herein shall be true and correct on and as of the Closing Date and the Partnership shall have performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date.
(g) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, of the Chief Executive Officer, the President, any Vice President or the Vice President and Chief Financial Officer of the Company or the General Partner on behalf of the Partnership, which shall certify that (i) no order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such officer, no proceedings for such purpose are pending before or threatened by the Commission, (ii) the representations and warranties of the Partnership contained herein are true and correct on and as of the Closing Date, (iii) the Partnership has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date, (iv) the Partnership and its subsidiaries have not sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that would reasonably be expected to have a Material Adverse Effect, other than as set forth or contemplated by the Registration Statement and Prospectus, and (v) since the respective dates as of which information is given in the Prospectus, there has not been any change, or any development involving a prospective change, in the partnership interests, capital stock or long-term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position or results of operations of the Partnership and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities whether or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not arising in the ordinary course of business business, other than as referred to set forth or contemplated in by the Registration Statement; and (iv) except , as set forth in each preliminary prospectus amended or supplemented through the date of this Agreement, and the Prospectus, no action, suit as amended or proceeding at law or in equity shall be pending or, to supplemented by the Company’ knowledge, threatened against Prospectus Supplement dated the Company or any date of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you this Agreement.
(h) The Underwriters shall have received at each Closing Date, a certificate of on the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) On each Closing Date you shall have received a signed opinion, dated as of such date, of from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PCLLP, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of Partnership, an opinion, dated the effective date of the Registration StatementClosing Date, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect substantially to the fairness and reasonableness of the underwriting terms and arrangements for this offeringeffect as set forth in Schedule I hereto.
(i) At The Underwriters shall have received on the Closing Date from ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriters, an opinion in form satisfactory to the Underwriters, dated the Closing Date, with respect to the Partnership, the Purchased Securities and this Agreement as well as such other related matters as the Underwriters may reasonably request. Such opinion shall also include language substantially to the effect of the penultimate paragraph of Schedule I hereto. The Partnership shall have furnished to such counsel for the Underwriters such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(j) Subsequent to the date of this Agreement, the Representatives no downgrading shall have received an agreement substantially occurred in the form of Annex A hereto signed rating accorded the Partnership’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the persons listed on Schedule B heretoCommission for purposes of Rule 436(g)(2) under the Securities Act, and such agreements nor shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not there have been fulfilled as of the date indicatedany public announcement, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or beyond what it had announced prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf date of this Agreement, that any such organization has under surveillance or review its ratings of any debt securities or preferred stock of the Underwriters compliance Partnership (other than an announcement with any conditions to the obligations positive implication of the Underwriters hereundera possible upgrading, whether in respect and no implication of the First Closing Date, an Additional Closing Date or otherwisea possible downgrading of such rating).
Appears in 1 contract
Sources: Underwriting Agreement (Kinder Morgan Energy Partners L P)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder on the Closing Date are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by Nelnet Funding under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Nelnet Funding or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of Nelnet Funding, NELN, the Company and its subsidiaries, taken as a whole, from that set forth in Sellers or Nelnet not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Representatives, would materially adversely affect the market for the Notes, (ii) the withdrawal or any downgrading in the long term counterparty rating of Nelnet below "BBB+" by S&P, or any public announcement that such organization has under surveillance or review its long term counterparty rating of Nelnet (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iii) any downgrading in the Prospectusrating of any debt securities of trusts sponsored by Nelnet Funding, except changes NELN, the Sellers or Nelnet by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by Nelnet Funding, NELN, the Sellers or Nelnet (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), or (iv) any event or development which makes any statement made in the Registration Statement indicates might occur after the effective date of the Registration Statementor Prospectus untrue or which, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course opinion of business other than as referred Nelnet Funding and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinionan opinion addressed to you of Kutak Rock LLP, dated in its capacity as of such counsel to the Trust, date, of ▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ & Markiles LLPDate, in form and substance satisfactory to you and your counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings Nelnet Trust Purchase Agreement, the Servicing Agreement, the Indenture, the Trust Eligible Lender Agreement, the Administration Agreement, the Custodian Agreements and other legal matters relating to this Agreement and to the transactions contemplated hereby, validity of the Notes and the Company shall have furnished to such counsel such documents related matters as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Daterequest. In addition, you shall have received a signed letteran opinion addressed to you of Kutak Rock LLP, datedin its capacity as counsel for the Trust, respectively, as of each such date, from ▇▇▇▇▇in form ▇▇▇ & Company Certified Public Accountants PC▇ubstance satisfactory to you and your counsel, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection concerning "true sale," "non-consolidation" and "first perfected security interest" and certain other issues with respect to the fairness and reasonableness transfer of the underwriting terms and arrangements for this offering.
(i) At Financed Eligible Loans from the date of this AgreementSellers to Nelnet Funding, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel from Nelnet Funding to the several Underwriters, Trust and at from the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior Trust to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseTrustee.
Appears in 1 contract
Sources: Underwriting Agreement (Nelnet Student Loan Funding LLC)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter hereunder to purchase the Shares on the Closing Date are subject to the performance by the Company and the Selling Stockholder of their obligations hereunder and to the following additional conditions:
(ai) The Registration Statement shall have become effective under the Act and, at the Closing Date, no No stop order suspending with respect to the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act, and no proceedings order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for that purpose shall have been instituted before oroffering or sale in any jurisdiction, or to the knowledge of the Company Company, the Selling Stockholder or the Representatives, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.
(b) At each Closing Date, (i) the representations and warranties Underwriter of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as initiation or threatening of any proceedings for any of such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Datepurposes, has occurred; (ii) the Registration Statement, each preliminary prospectus Statement and the Prospectus and any all amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectusthereto, or any amendment or supplement theretomodifications thereof, if any, shall not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) there the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, shall have beennot 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, since the respective dates as of which information is given, no material adverse change in the condition light of the circumstances under which they are made, not misleading.
(b) No material and unfavorable change, financial or otherwiseotherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects or results of operations of the Company and its subsidiaries, Subsidiaries taken as a wholewhole shall occur or become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) shall have been entered into by the Company or any of its Subsidiaries.
(c) The representations and warranties of the Company and the Selling Stockholder contained herein shall be true and correct on and as of the Closing Date, from that set forth as if made on and as of the Closing Date and the Company and the Selling Stockholder shall have complied with all agreements and all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(d) The Company shall furnish to the Underwriter an opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, P.L.L., addressed to the Underwriter, and dated as of such date, and in form satisfactory to the Underwriter, stating that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Ohio;
(ii) The Company has power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified to do business as a foreign corporation and is in good standing (or the local law equivalent) in all other jurisdictions in which its ownership or lease of property or the conduct of business requires such qualification except where the failure to so qualify will not, individually or in the aggregate, have a Material Adverse Effect;
(iii) Each Subsidiary has been duly incorporated and is an existing corporation in good standing (or local law equivalent) under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and is duly qualified to do business as a foreign corporation in good standing (or local law equivalent) in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; except as otherwise disclosed in the Registration Statement, all of the issued and outstanding capital stock of each preliminary prospectus such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free from liens, encumbrances and defects; none of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or other similar rights of any securityholder of such Subsidiary;
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the financial statements, including the schedules and notes thereto, included in the Registration Statement and Prospectus. The Shares and all other shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. The description of the Common Stock in the Prospectus is complete and accurate in all material respects. Except as set forth in the Prospectus, there are no options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible or exchangeable into or exercisable for, or any contracts, commitments, plans or arrangements to issue or sell, any shares of capital stock of the Company, any shares of capital stock of any Subsidiary or any such warrants, convertible, exercisable or exchangeable securities or obligations. The descriptions of the Company's stock option and other stock plans or arrangements, and the options or other rights granted and exercised thereunder, set forth or incorporated by reference in the Prospectus, accurately present the information required to be shown with respect to such plans, arrangements, options and rights;
(v) The Shares have been duly authorized for listing by NYSE and Nasdaq upon official notice of issuance;
(vi) To such counsel's knowledge, except changes that as disclosed in the Registration Statement indicates might occur after or the effective date Prospectus, no person or entity has the right to require the registration under the Securities Act of shares of Common Stock or other securities of the Company by reason of the filing or effectiveness of the Registration Statement or the execution of this Agreement;
(vii) To such counsel's knowledge, none of the Subsidiaries is in violation of its articles of incorporation or by-laws (or similar corporate documents);
(viii) All descriptions in the Prospectus and the Prospectus Supplement, as such descriptions have been updated by descriptions in the Prospectus Supplement or incorporated by reference therein, of statutes, regulations or legal or governmental proceedings to the extent that they constitute matters of law or legal conclusions, are accurate in all material respects and present in all material respects the information required to be shown by the Securities Act and the Exchange Act;
(ix) This Agreement has been duly authorized, executed and delivered by the Company;
(x) The Registration Statement has been declared effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission;
(xi) The Registration Statement, the Prospectus, excluding the documents incorporated by reference therein, and neither each amendment or supplement to the Registration Statement and Prospectus, excluding the documents incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements and supporting schedules and notes included therein or omitted therefrom, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder;
(xii) The documents incorporated by reference in the Prospectus (other than the financial statements and supporting schedules and notes included therein or omitted therefrom, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(xiii) To the best of such counsel's knowledge after reasonable investigation, there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any of its Subsidiaries is a party, or to which the property of either of the Company or any of its Subsidiaries is subject, before or brought by any court or governmental agency or body, domestic or foreign, which would reasonably be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations thereunder;
(xiv) The information in the Prospectus, to the extent that it constitutes matters of law, summaries of legal matters, the Company's articles of incorporation and code of regulations or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects;
(xv) All descriptions in the Registration Statement of contracts and other documents to which the Company or its Subsidiaries are a party are accurate in all material respects; to the best of such counsel's knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(xvi) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign (other than under the Securities Act and the rules and regulations of the Commission thereunder, which have been obtained, or as may be required under the securities or blue sky laws of the various states as to which such counsel need express no opinion) is necessary or required in connection with the due authorization, execution, delivery or performance of this Agreement by the Company or for the offering, issuance, sale or delivery of the Shares;
(xvii) The execution, delivery and performance of this Agreement, and the Shares and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations under this Agreement and the Shares and such other agreements or instruments do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to such counsel, to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries or the Selling Stockholder is subject (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not have a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or code of regulations (or similar corporate documents) of the Company or any of its Subsidiaries, or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to such counsel, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or the Selling Stockholder or any of its respective properties, assets or operations;
(xviii) The Company is not required, and upon the issuance and sale of the Shares as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be required, to register as an "investment company" under the 1940 Act;
(xix) Neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligationsis, direct or contingent, or entered into any material transaction, contract or agreement not and if operated in the ordinary course of business other than as referred to or contemplated manner described in the Registration Statement; and (iv) except as set forth in each preliminary prospectus and the Prospectus, no action, suit will not be a "broker" within the meaning of Section 3(a)(4) of the Exchange Act or proceeding at law a "dealer" within the meaning of Section 3(a)(5) of the Exchange Act or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth registered pursuant to Section 15(a) of the Exchange Act;
(xx) To the knowledge of such counsel (after reasonable investigation), each Insurance Subsidiary holds such insurance licenses, certificates and permits from governmental authorities (including, without limitation, Insurance Licenses) as are necessary to the conduct of its business as described in the Registration Statement, and no proceedings shall be pending or, Prospectus; to the Company’ knowledgeknowledge of such counsel, there is no pending or threatened against the Company action, suit, proceeding or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding investigation that could reasonably be expected, individually or in the aggregate, expected to result in the revocation, termination or suspension of any Insurance License which would have a Material Adverse Effect; and you shall have received at each Closing Dateexcept as disclosed in the Prospectus, a certificate of to the principal executive officer and the principal financial or accounting officer of the Company, dated as knowledge of such Closing Date, evidencing compliance with the provisions of this Subsection 5(bcounsel (after reasonable investigation), and confirming no insurance regulatory agency or body has issued, or commenced any proceeding for the accuracy issuance of, any order or decree impairing, restricting or prohibiting the payment of dividends by any Insurance Subsidiary to its parent;
(xxi) To the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as knowledge of such date.
counsel (c) No Underwriter after reasonable investigation), all reinsurance treaties and arrangements to which any Insurance Subsidiary is a party are in full force and effect and such counsel is not aware of any violation of, or default in the performance, observance or fulfillment of, any obligation, agreement, covenant or condition contained therein by any Insurance Subsidiary. Such counsel shall have discovered and disclosed also state that nothing has come to the Company prior its attention that would lead it to any Closing Date believe that the Registration StatementStatement or any amendment thereto, (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which it need make no statement), at the time such Registration Statement or any preliminary prospectus such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus or any amendment or supplement theretothereto (except for financial statements and schedules and notes thereto and other financial data included or incorporated by reference therein or omitted therefrom, contains as to which we need make no statement), at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued included or includes an untrue statement of a material fact that in the reasonable opinion of counsel to the Representatives is material, or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(d) On each Closing Date you shall have received a signed . In rendering such opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B hereto, and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectusrely as to matters of fact (but not as to legal conclusions), to the Prospectusextent they deem proper, the Registration Statement, the offer and sale on certificates of responsible officers of the Shares hereunderCompany and public officials. Such opinion shall not state that it is to be governed or qualified by, or proceedings at the Closing Date. If that it is otherwise subject to, any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicatedtreatise, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on written policy or prior other document relating to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiselegal opinions.
Appears in 1 contract
Sources: Underwriting Agreement (American Financial Group Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy, as of the date hereof and at each of the First Closing Date and the Second Closing Date (as if made at such Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective under not later than 5:00 p.m., Central time, on the Act anddate of this Agreement, at or such later time and date as you shall approve and all filings required by Rules 424, 430A and 433 of the Closing Date, Rules and Regulations shall have been timely made (without reliance on Rule 424(b)(8) or Rule 164(b)); no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) The Underwriters shall not have advised the Company that (i) the Registration Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the Underwriters’ opinion, is material or omits to state a material fact which, in the Underwriters’ opinion, is required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an untrue statement of material fact which, in the Underwriters’ opinion, is material, or omits to state a fact which, in the Underwriters’ opinion, is material and is required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(c) Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Time of Sale Disclosure Package and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or outstanding convertible securities), or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company, or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), that, in your judgment, makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.
(d) On each Closing Date, there shall have been furnished to you the opinion of A▇▇▇▇▇ & J▇▇▇▇▇ LLP, counsel for the Company, dated such Closing Date and addressed to you in substantially the form attached hereto as Exhibit B. On each Closing Date, there shall have been furnished to you the opinion of L▇▇▇▇▇ & L▇▇▇▇▇ P.A., intellectual property counsel for the Company, dated such Closing Date and addressed to you in substantially the form attached hereto as Exhibit C. On each Closing Date, there shall have been furnished to you the opinion of H▇▇▇ Law Group, counsel for the Selling Stockholders, dated such Closing Date and addressed to you in substantially the form attached hereto as Exhibit D.
(e) On each Closing Date, there shall have been furnished to you such opinion or opinions from Faegre B▇▇▇▇ D▇▇▇▇▇▇ LLP, counsel for the Representative, dated such Closing Date and addressed to you, with respect to such matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(f) On each Closing Date you shall have received a letter of Drake & K▇▇▇▇ CPAs, dated such date and addressed to you, confirming that it is an independent public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Shares Commission, and stating, as of the date of such letter (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 Disclosure Package, as of a date not prior to the date hereof or more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the execution of this Agreement, and the effect of the letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(g) On each Closing Date, there shall have been issued furnished to you a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, 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 such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Securities for offering or sale, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceedings proceeding for that purpose shall have has been instituted before or, to the knowledge best of the Company or the Representativestheir knowledge, shall be is contemplated by the Commission or any state securities or “Blue Sky” commissioner or authority.regulatory body; and
(biii) At each Closing Date, (i) the representations and warranties The signers of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of such Closing Date and the Company shall said certificate have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) carefully examined the Registration Statement, each preliminary prospectus the Time of Sale Disclosure Package and the Prospectus Prospectus, and any amendments thereof or supplements thereto, and (A) each part of the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulationscontain, and neither contained when such part of the Registration Statement, or any preliminary prospectus or amendment thereof, became effective, all statements and information required to be included therein, the ProspectusRegistration Statement, or any amendment thereof, does not contain and did not contain when such part of the Registration Statement, or supplement theretoany amendment thereof, shall contain became effective, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus, as amended or supplemented, does not include and did not include as of its date or the time of first use within the meaning of the Rules and Regulations, any untrue statement of material fact or omit to state and did not omit to state as of its date or the time of first use within the meaning of the rules and Regulations a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (iiiB) neither (1) the Time of Sale Disclosure Package nor (2) any individual Issuer Limited-Use Free Writing Prospectus, when considered together with the Time of Sale Disclosure Package, include, nor included as of the Time of Sale any untrue statement of a material fact or omits, or omitted as of the Time of Sale, to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) since the Time of Sale there shall have beenhas occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, since (D) subsequent to the respective dates as of which information is given, no material adverse change given in the condition (financial or otherwise), business, prospects or results Time of operations of the Company Sale Disclosure Package and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, each preliminary prospectus and the Prospectus, except changes that the Registration Statement indicates might occur after the effective date of the Registration Statement, and neither the Company nor any of its Subsidiaries shall have has not incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactiontransactions, contract or agreement not in the ordinary course of business business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Time of Sale Disclosure Package and in the Prospectus, there has not been any change in the capital stock (other than as referred to or contemplated a change in the Registration Statement; number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or outstanding convertible securities), or any material change in the short-term or long-term debt, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company or any other Material Adverse Change or any development which could reasonably be expected to result in any Material Adverse Change (whether or not arising in the ordinary course of business), and (ivE) except as set forth stated in each preliminary prospectus the Time of Sale Disclosure Package and in the Prospectus, no there is not pending, or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against which the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries is a party before or by any commissioncourt, board Governmental Agency or administrative agency in the United States or elsewhereany arbitrator, wherein an unfavorable decision, ruling or finding which could reasonably be expected, individually or in the aggregate, expected to result in a any Material Adverse Effect; and you shall have received at Change.
(h) On each Closing Date, there shall have been furnished to you a certificate certificate, dated such Closing Date and addressed to you, signed by the Selling Stockholder, to the effect that the representations and warranties of the principal executive officer Selling Stockholder in this Agreement are true and the principal financial or accounting officer of the Company, dated correct as if made at and as of such Closing Date, evidencing compliance and the Selling Stockholder has complied with all the provisions of this Subsection 5(b), agreements and confirming satisfied all the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein on its part to be met by the Company have been met as of performed or satisfied at or prior to such dateClosing Date.
(ci) No Underwriter The Representative shall have discovered and disclosed to received all of the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that Lock-Up Agreements referenced in the reasonable opinion of counsel to the Representatives is material, or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingSection 4.
(dj) On each Closing Date you shall have received a signed opinion, dated as of such date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the The Company shall have furnished to you and counsel for the Representative such counsel such documents additional documents, certificates and evidence as you or they may have reasonably requested for the purpose of enabling them to pass upon such mattersrequested.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(hk) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offeringarrangements.
(il) At The Firm Shares or the date of this AgreementOption Shares (as applicable) to be delivered on such Closing Date will have been approved for listing on the [l]. All such opinions, the Representatives shall have received an agreement substantially in the form of Annex A hereto signed by the persons listed on Schedule B heretocertificates, letters and such agreements shall other documents will be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection compliance with the sale of the Shares shall be reasonably provisions hereof only if they are satisfactory in form and substance to you and counsel to for the several UnderwritersRepresentative. The Company will furnish you with such conformed copies of such opinions, certificates, letters and at the time of signing this Agreement and on the Closing Date, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, documents as you or such counsel may shall reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiserequest.
Appears in 1 contract
Sources: Purchase Agreement (Magnegas Corp)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters Underwriter to purchase the Notes hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by the Companies under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Companies or the RepresentativesUnderwriter, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development involving a prospective change, in 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; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of the Company and its subsidiariesCompanies, taken as a whole, from that set forth in The Money Store or the Surety Provider not contemplated by the Registration Statement, each preliminary prospectus and which in the Prospectusopinion of the Underwriter, except changes that would materially adversely affect the market for the Notes, or (ii) any event or development which makes any statement made in the Registration Statement indicates might occur after or Prospectus untrue or which, in the effective date opinion of the Registration StatementCompanies and their counsel or the Underwriter and its counsel, and neither requires the Company nor filing of any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course of business other than as referred amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Underwriter, materially adversely affect the market for the Notes.
(dc) On each Closing Date you The Underwriter shall have received a signed opinion, dated as of such date, on the Closing Date opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., special Arizona counsel for the Companies, and ▇▇▇▇ ▇▇▇▇▇▇ & Markiles LLP▇▇▇▇▇▇▇▇▇, special counsel for the Companies, dated the Closing Date and addressed to the several Underwriters, with respect Underwriter in form and scope satisfactory to the sufficiency of all corporate proceedings Underwriter and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company its counsel.
(d) The Underwriter shall have furnished received on the Closing Date an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel of the Companies and The Money Store, dated the Closing Date and addressed to such counsel such documents as they may have reasonably requested for the purpose of enabling them Underwriter in form and scope satisfactory to pass upon such mattersthe Underwriter and its counsel.
(e) On each Closing Date you The Underwriter shall have received on the signed opinion, dated as Closing Date an opinion of such date, of K&L Gates ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Eligible Lender Trustee, dated the Closing Date and addressed to the Company, Underwriter in form reasonably and scope satisfactory to counsel for the Underwriters, together with signed or photostatic copies thereof for each of the other UnderwritersUnderwriter and its counsel.
(f) At the time of the signing of this Agreement and on each Closing Date, you The Underwriter shall have received a signed letteron the Closing Date an opinion of counsel for AMBAC Indemnity Corporation (the "Surety Provider"), dateddated the Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(g) The Underwriter shall have received on the Closing Date an opinion of ▇▇▇▇▇ & Case, respectivelyEsqs., as counsel for the Indenture Trustee, dated the Closing Date and addressed to the Underwriter in form and scope satisfactory to the Underwriter and its counsel.
(h) The Underwriter shall have received on the Closing Date an opinion or opinions of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriter, dated the Closing Date, and addressed to the Underwriters (with executed copies for each of the Underwriters) Underwriter, in the form heretofore approved by counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect and scope satisfactory to the fairness and reasonableness of the underwriting terms and arrangements for this offeringUnderwriter.
(i) At the date of this Agreement, the Representatives The Underwriter shall have received on the Closing Date from KPMG Peat Marwick LLP a letter dated the Closing Date, and in form and substance satisfactory to the Underwriter, to the effect that they have carried out certain specified procedures, not constituting an agreement substantially audit, with respect to certain information regarding the Financed Student Loans and setting forth the results of such specified procedures.
(i) There shall not have been, since the respective dates as of which information is given in the form Registration Statement (or any amendment or supplement thereto), except as may otherwise be stated therein, any material adverse change in the condition (financial or other), business, prospects, properties, net worth or results of Annex A hereto operations of the Companies or of The Money Store, and (ii) all the representations and warranties of the Companies and The Money Store contained in this Agreement and the Basic Documents shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date and the Underwriter shall have received a certificate, dated the Closing Date and signed by an executive officer of the persons listed on Schedule B heretoCompanies and The Money Store, to the effect set forth in this Section 6(j) and such in Section 6(k) hereof.
(k) Neither of the Companies nor The Money Store shall have failed at or prior to the Closing Date to have performed or complied with any of its respective agreements shall herein contained and required to be in full force and effect on performed or complied with by it hereunder at or prior to the Closing Date.
(jl) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on the Closing Date, you and such counsel The Underwriter shall have received each and every additional documentby instrument dated the Closing Date (at the option of the Underwriter), letterin lieu of or in addition to the opinions referred to in clauses (c) through (h) of this Section (6), opinion, certificate or other item dated and executed in a manner reasonably satisfactory the right to you and such counsel, as you or rely on opinions provided by such counsel may reasonably request in connection with each preliminary prospectus, and all other counsel under the Prospectus, the Registration Statement, the offer and sale terms of the Shares hereunderBasic Documents or to ▇▇▇▇▇'▇ Investors Service, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwiseInc. ("Moody's") and Standard & Poor's Corporation ("Standard & Poor's").
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Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditionsconditions precedent:
(a) The Registration Statement shall have become effective All actions required to be taken and all filings required to be made by Nelnet Funding under the Act and, at prior to the sale of the Notes shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or the qualifications of the Shares shall have been issued and no proceedings for that purpose shall have been instituted before or, to the knowledge of the Company Nelnet Funding or the RepresentativesUnderwriters, shall be contemplated by the Commission or any state securities or “Blue Sky” commissioner or authorityCommission.
(b) At each Closing DateSubsequent to the effective date of this Agreement, there shall not have occurred (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 such Closing Date and the Company shall have performed all of the obligations and complied with all of the conditions hereunder on its part to be performed or complied with on or prior to the Closing Date; (ii) the Registration Statement, each preliminary prospectus and the Prospectus and any amendments or supplements thereto shall in all material respects conform to the requirements of the Act and the Rules and Regulations, and neither the Registration Statement, any preliminary prospectus or the Prospectuschange, or any amendment development or supplement theretoevent involving a prospective change, shall contain any untrue statement of a material fact in or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the respective dates as of which information is given, no material adverse change in affecting the condition (financial or otherwiseother), business, prospects properties, net worth, or results of operations of Nelnet Funding, the Company and its subsidiariesServicer, taken as a whole, from that set forth in the Sellers or NLS not contemplated by the Registration Statement, each preliminary prospectus which in the opinion of the Representatives, would materially adversely affect the market for the Notes, (ii) any downgrading in the rating of any debt securities of trusts sponsored by Nelnet Funding, the Servicer, the Sellers or NLS by any nationally recognized statistical rating organization or any public announcement that any such organization has under surveillance or review its rating of any debt securities of trusts sponsored by Nelnet Funding, the Servicer, the Sellers or NLS (other than an announcement with positive implications of a possible upgrading, and the Prospectusno implication of a possible downgrading, except changes that of such rating), or (iii) any event or development which makes any statement made in the Registration Statement indicates might occur after the effective date of the Registration Statementor Prospectus untrue or which, and neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or material obligations, direct or contingent, or entered into any material transaction, contract or agreement not in the ordinary course opinion of business other than as referred Nelnet Funding and its counsel or the Underwriters and their counsel, requires the filing of any amendment to or contemplated change in the Registration Statement; and (iv) except as set forth Statement or Prospectus in each preliminary prospectus and the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries that would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the Company’ knowledge, threatened against the Company or any of its Subsidiaries before or by any commission, board or administrative agency in the United States or elsewhere, wherein an unfavorable decision, ruling or finding could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and you shall have received at each Closing Date, a certificate of the principal executive officer and the principal financial or accounting officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this Subsection 5(b), and confirming the accuracy of the representations of the Company set forth in Section 1 hereof and confirming that all conditions set forth herein to be met by the Company have been met as of such date.
(c) No Underwriter shall have discovered and disclosed to the Company prior to any Closing Date that the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, contains an untrue statement of a fact that in the reasonable opinion of counsel to the Representatives is material, or omits order to state any a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes.
(dc) On each Closing Date you You shall have received a signed opinion, dated as of such date, an opinion addressed to you of ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & Markiles LLP, counsel to the several Underwriters, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement and the transactions contemplated hereby, and the Company shall have furnished to such counsel such documents in its capacity as they may have reasonably requested for the purpose of enabling them to pass upon such matters.
(e) On each Closing Date you shall have received the signed opinion, dated as of such date, of K&L Gates LLP, counsel to the Company, in form reasonably satisfactory to counsel for dated the Underwriters, together with signed or photostatic copies thereof for each of the other Underwriters.
(f) At the time of the signing of this Agreement and on each Closing Date, in form and substance satisfactory to you shall have received a signed letter, dated, respectively, as of each such date, from ▇▇▇▇▇▇▇▇ & Company Certified Public Accountants PC, addressed to the Underwriters (with executed copies for each of the Underwriters) in the form heretofore approved by and your counsel for the Underwriters.
(g) As of the effective date of the Registration Statement, the Common Stock shall be listed on the NASDAQ Global Market, subject to official notice of issuance.
(h) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements for this offering.
(i) At the date of this Nelnet Trust Purchase Agreement, the Representatives shall have received an agreement substantially in Servicing Agreement, Auction Agent Agreement, the form of Annex A hereto signed by Indenture, the persons listed on Schedule B hereto, Company Eligible Lender Agreement and such agreements shall be in full force and effect on the Closing Date.
(j) All proceedings taken at or prior to each Closing Date in connection with the sale of the Shares shall be reasonably satisfactory in form and substance to you and counsel to the several Underwriters, and at the time of signing this Agreement and on to the Closing Datevalidity of the Notes and such related matters as you shall reasonably request. In addition, you and such counsel shall have received each and every additional document, letter, opinion, certificate or other item dated and executed in a manner reasonably satisfactory to you and such counsel, as you or such counsel may reasonably request in connection with each preliminary prospectus, the Prospectus, the Registration Statement, the offer and sale of the Shares hereunder, or proceedings at the Closing Date. If any of the conditions herein provided for in this Section shall not have been fulfilled as of the date indicated, all obligations of the several Underwriters under this Agreement may be cancelled by the Representatives by notifying the Company of such cancellation on or prior to the applicable Closing Date. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Additional Closing Date or otherwise.shall
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Sources: Underwriting Agreement (Nelnet Student Loan Funding LLC)