Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Continental Airlines Inc /De/)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase accept delivery of and pay for the Securities Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Company Community Facilities District contained herein herein, as of the time date hereof and as of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy in all material respects of the statements of the Company officers and other officials of the Community Facilities District made in any certificates delivered by the Company to the Underwriter or other documents furnished pursuant to the provisions hereof, to the performance by the Company Community Facilities District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions: :
(a) At the Closing Date, the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) The Registration information contained in the Official Statement has become effective will, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant to Section 3(i) hereof, be true, correct and complete in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto pursuant to Section 3(i) hereof, contain 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 the light of the circumstances under which they were made, not misleading;
(c) Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the Closing Time no stop order suspending initial offering prices set forth in the effectiveness Official Statement or the ability of the Registration Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds) by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under, or from the other requirements of, the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under, or from the other requirements of, the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any notice objecting amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its use property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States; or
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction; or
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
(8) the entry of an order by a court of competent jurisdiction which order, in the reasonable opinion of the Underwriter, materially and adversely affects proposed development of property within the Community Facilities District; or
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
(10) there shall have been any material adverse change in the affairs of the Community Facilities District or County that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
(12) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued under or made to the 1933 Act effect that the issuance, offering, or proceedings therefor initiated sale of the Bonds, including all the underlying obligations as contemplated hereby or threatened by the CommissionOfficial Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) the commencement of any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission action, suit, proceeding, inquiry or investigation, at law or in the manner and within the time period required equity, before or by Rule 424(bany court, regulatory agency, public board or body described in Section 3(k).
(d) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At On the Closing TimeDate, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(i1) the favorable opinionThe Community Facilities District Documents, together with a certificate dated as of the Closing TimeDate of the Clerk of the Board to the effect that each such document is a true, correct and complete copy of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.the one duly approved by the Board;
(2) The Official Statement, counsel for duly executed by the CompanyCommunity Facilities District;
(3) The opinion of Bond Counsel, dated the Closing Date and addressed to the Community Facilities District, in substantially the form attached to the Preliminary Official Statement as Appendix C, and substance satisfactory a reliance letter from such firm, dated the Closing Date and addressed to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to that such further effect as counsel approving opinion addressed to the Community Facilities District may be relied upon by the Underwriter may reasonably request, and to the same extent as if such opinion were addressed to them;
(ii4) the favorable opinionThe supplemental opinion of Bond Counsel, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company Date and its subsidiaries, in form and substance satisfactory addressed to counsel for the Underwriter, to the effect set forth that (i) this Bond Purchase Agreement, and the Community Facilities District Continuing Disclosure Certificate have been duly authorized, executed and delivered by the Community Facilities District, and, in Exhibit A-3 hereto the case of the Bond Purchase Agreement, assuming such agreement constitutes a valid and binding obligation of the respective other parties thereto, constitute the legally valid and binding obligations of the Community Facilities District enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity and to such further effect as counsel the exercise of judicial discretion in appropriate cases; (ii) the Bonds are not subject to the Underwriter may reasonably request. At registration requirements of the Closing TimeSecurities Act of 1933, as amended, and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement under the captions “THE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” “TAX MATTERS,” and in Appendices C, E, F and G, insofar as such statements expressly summarize certain provisions of the Bonds, the Underwriter shall have received Indenture, the favorable opinionother agreements and the opinion of such firm concerning the exclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds, dated as of the Closing Time, are accurate in all material respects;
(5) The letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for a Professional Corporation, dated the Company, Closing Date and addressed to the General Counsel of the Company, in form Community Facilities District and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement, as of its date contained, or as of the Closing Date contains, any untrue statement of a material fact or omits to state a material fact required to be purchased stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no opinion or belief need be expressed as to any financial statements or other financial, statistical or engineering data or forecasts, numbers, charts, estimates, projections, assumptions, or expressions of opinion, any information about valuation, appraisals, absorption, archeological or environmental matters, or any information about The Depository Trust Company, the book-entry-only system or CUSIP numbers);
(6) A certificate, dated the Closing Date and signed by an authorized representative of the Community Facilities District, ratifying the use and distribution by the Underwriter of the Preliminary Official Statement and the Official Statement in connection with the offering and sale of the Bonds and certifying that (i) the representations and warranties of the Community Facilities District contained in Section 3 hereof are true and correct in all material respects on such and as of the Closing Date of Delivery and otherwise to with the same effect as if made on the opinions required Closing Date; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Bonds and the Community Facilities District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the Community Facilities District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Formation Documents, the Community Facilities District Documents and the Official Statement at or prior to the Closing Date;
(7) An opinion, dated the Closing Date and addressed to the Underwriter, of the office of County Counsel, to the effect that (i) the County was duly organized and is validly existing as a division of the State under the Constitution and laws of the State of California,
(ii) the Board adopted the resolutions and ordinances forming the Community Facilities District, confirming the Special Tax, approving the Community Facilities District Documents and authorizing the sale and issuance of the Bonds at meetings of the Board which were held pursuant to law, (iii) to its current actual knowledge, there are no actions, suits, proceedings, inquiries, or investigations, at law or in equity, before or by Section 6(bany California court, governmental agency, public board, or body, pending (notice of which has been served on the County) hereof.or, threatened in writing against the County or the Community Facilities District, for which the County or the Community Facilities District has been served, to restrain or enjoin the issuance of the Bonds, the collection or application of the Special Tax, or the payment of principal of and interest on the Bonds, or in any way contesting the validity of the Bonds or the Community Facilities District Documents or this Bond Purchase Agreement;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Underwriter shall have received from Deloitte & Touche LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and at the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Time Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Company or proceedings therefor initiated or threatened the Underwriter, shall have been contemplated by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with .
(c) Subsequent to the reasonable satisfaction execution and delivery of counsel to the Underwriter. A prospectus containing the Rule 430B Information this Agreement, there shall not have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received occurred (i) the favorable opinionany change, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Companyor any development involving a prospective change, in form and substance satisfactory to counsel for or affecting particularly the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel business or properties of the Company, with responsibility for any Servicer or the legal affairs of the Company and its subsidiariesMaster Servicer which, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, to materially impairs the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as investment quality of the Closing TimeOffered Certificates; (ii) any downgrading in the ratings of the securities of any Servicer or the Master Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its ratings of any securities of any Servicer or the Master Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPsuch rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, counsel or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, in form and substance reasonably satisfactory the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law proceed with completion of the State sale of New York and payment for the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of the President or a Vice President an executive officer of the Company and of the chief financial or chief accounting in which such officer of the Company, dated as of the Closing Timeshall state that, to the effect that best of such officer's knowledge after reasonable inspection, (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company contained in Section 1 hereof the Basic Documents are true and correct with the same force and effect as though expressly if made at and as of on the Closing Time, Date and (iiiii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date.
(ive) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the The Underwriter shall have received from Ernst & Young LLP a letteran opinion of reasonably acceptable counsel to the Master Servicer and the Securities Administrator, dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of counsel for the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. .
(f) The Underwriter shall have received each an opinion of the signed Lock-Up Agreements referred Hunton & Williams LLP, special counsel to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and Bank of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇America, Nat▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Association, counsel for dated the Company, and the General Counsel of the CompanyClosing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Hunton & Williams LLP, special counsel to the Underwriter, a letter addr▇▇▇▇▇ ▇▇ the Underwriter dated the Closing Date with respect to the Final Prospectus, substantially to the effect that no facts have come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, 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, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(i) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(j) At the Closing Date, the Certificates and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(k) The Underwriter shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(l) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(m) The Underwriter shall have received a certificate (upon which Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated such the Closing Date of Deliveryan officer of the Custodian in which such officer shall state that, relating to the Option Securities best of such officer's knowledge after reasonable investigation: (i) the Custodian is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Custodian (the "Custodian Disclosure") includes (a) the Custodian's correct name and form of organization and (b) a discussion of the Custodian's procedures for safekeeping and preservation of the mortgage loans; and (iii) the Custodian Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Custodian Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(n) The Underwriter shall have received a certificate (upon which Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated the Closing Date of an officer of the Trustee in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) the Trustee is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement (ii) the information in the Prospectus Supplement related to the Trustee (the "Trustee Disclosure") includes (a) the Trustee's correct name and form of organization and (b) a discussion of the Trustee's experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Trustee Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(o) The Underwriter shall have received a certificate (upon which Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated the Closing Date of an officer of American Home Mortgage Corp. and Wells Fargo Bank, N.A. (each a "Significant Originator" and ▇▇▇▇▇her the "Significant Originators") in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) such Significant Originator is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to such Significant Originator (the "Originator Disclosure") includes such Significant Originator's correct name, form of organization and length of time originating mortgage loans; (iii) the description of such Significant Originator's origination program includes (a) experience in originating mortgage loans, (b) size and composition of such Significant Originator's origination portfolio, and (c) such Significant Originator's credit-granting or underwriting criteria for the mortgage loans; (iv) except as set forth in the Originator Disclosure, no additional information regarding such Significant Originator's origination program could have a material adverse affect in the performance of the pool assets or the Offered Certificates; and (v) such Originator Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Originator Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The requirement to provide a certificate pursuant to the preceding sentence shall be deemed satisfied if such Significant Originator represents and warrants that the Originator Disclosure satisfies the relevant provisions of Regulation AB under the Act.
(p) The Underwriter shall have received a certificate (upon which Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated the Closing Date of an officer of Wells Fargo Bank, N.A. (the "Significant Servicer") and the Mast▇▇ Servicer in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) the Significant Servicer or Master Servicer is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Significant Servicer or Master Servicer (the "Servicer Disclosure") includes (a) the Significant Servicer's or Master Servicer's correct name and form of organization, (b) the correct length of time that the Significant Servicer or Master Servicer has been servicing mortgage loans; and (c) a discussion of the Significant Servicer's or Master Servicer's experience in servicing mortgage loans; (iii) except as set forth in the Servicer Disclosure, (a) there are no other servicers responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, (b) there have been no material changes to the Significant Servicer's or Master Servicer's servicing policies and procedures during the last three years, (c) no additional information regarding the Significant Servicer's or Master Servicer's financial condition could have a material affect on performance of the Offered Certificates, (d) no commingling of funds on deposit in collection accounts will be permitted by the Significant Servicer or Master Servicer, (e) no additional information with respect to any special or unique factors involved in servicing the mortgage loans could have a material affect on performance of the Offered Certificates, and (f) no additional information with respect to the Significant Servicer's or Master Servicer's process for handling delinquencies, losses, bankruptcies and recoveries could have a material affect on performance of the Offered Certificates; (iv) for any Significant Servicer or Master Servicer identified in the Prospectus Supplement as responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, the certifications in clauses (ii) and (iii) above are made with respect to the Significant Servicer or Master Servicer; and (v) the Servicer Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Servicer Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The requirement to provide a certificate pursuant to the preceding sentence shall be deemed satisfied if the Significant Servicer or Master Servicer represents and warrants that the Servicer Disclosure satisfies the relevant provisions of Regulation AB under the Act. The Company will provide or cause to be purchased on such Date of Delivery and otherwise provided to the same effect Underwriter such conformed copies of such opinions, certificates, letters and documents as the opinions Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6(b) hereof7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding 2007-1 Trust)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Deliveryany settlement date pursuant to Section 3, as the case may behereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇caused ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ London LLP, counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(d) The Underwriter shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory any settlement date, as applicable, and addressed to the Underwriter. In giving such opinion , with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
(e) The Company shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of Company, signed by the Company Chief Executive Officer and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct on and as of such date with the same force and effect as though expressly if made at on such date and as of the Closing Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and such date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Underwriter Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have received from Ernst & Young LLP a letterrequested and caused ▇▇▇▇▇▇ to have furnished to the Underwriter, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of such the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" Underwriter.
(g) Subsequent to the Underwriter with respect to the financial statements and certain financial information contained in the Registration StatementExecution Time or, if earlier, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in affecting the earnings, business, prospectsmanagement, properties properties, assets, rights, operations, condition (financial or results of operations otherwise) or prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date and any settlement date, as applicable, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the terms and in the manner contemplated in the Prospectus. At the Closing TimeNasdaq Capital Market, the Securities satisfactory evidence of which shall have been approved provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder's Subscription Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for listing the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the New York Stock Exchangecover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, subject only and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to official notice the Underwriter and counsel for the Underwriter, this Agreement and all obligations of issuancethe Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Underwriter shall have received each documents required to be delivered by this Section 6 and, if applicable, the last sentence of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement 3 shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.(UK) LLP, counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date of Deliveryor the applicable settlement date, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofapplicable.
Appears in 1 contract
Sources: Underwriting Agreement (Mountain & Co. I Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Firm Units and any Option Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Partnership Parties contained herein as of the time of the execution of this Agreement, the Closing Time and each Delivery Date of Delivery, as the case may bepursuant to Section 3 hereof, to the accuracy of the statements of the Company Partnership Parties made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Partnership Parties of its their obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with instituted or threatened.
(b) The Partnership shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special Republic of Liberia and Republic of The ▇▇▇▇▇▇▇▇ Islands counsel for the Partnership Entities, to have furnished to the reasonable satisfaction of counsel Underwriter its written opinion, dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter. A prospectus containing , substantially to the Rule 430B Information effect set forth in Exhibit C-1.
(c) The Partnership shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., U.S. counsel for to the CompanyPartnership Entities, to have furnished to the Underwriter its written opinion, dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to counsel for the Underwriter, substantially to the effect set forth in Exhibit A-2 hereto C-2.
(d) The Partnership shall have requested and to such further effect as caused ▇▇▇▇▇▇ Redo ▇▇▇▇▇▇▇ Advogados Associados, special Brazilian counsel to the Partnership Entities, to have furnished to the Underwriter may reasonably request, and (ii) the favorable its written opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company such Delivery Date and its subsidiariesaddressed to you, in form and substance reasonably satisfactory to counsel for the Underwriter, substantially to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter C-3.
(e) The Partnership shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ requested and caused ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (UK) LLP, special United Kingdom counsel for the UnderwriterPartnership Entities, to have furnished to the Underwriter its written opinion, dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter. In giving , substantially to the effect set forth in Exhibit C-4.
(f) The Partnership shall have requested and caused JLC Advisors LLP, special Singapore counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated such opinion such counsel may relyDelivery Date and addressed to you, as to all matters governed by the laws of jurisdictions other than the law of the State of New York in form and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel substance reasonably satisfactory to the Underwriter. Such , substantially to the effect set forth in Exhibit C-5.
(g) The Partnership shall have requested and caused Hanafiah Ponggawa & Partners, special Indonesian counsel may also state that, insofar as such opinion involves factual matters, they have reliedto the Partnership Entities, to have furnished to the extent they deem properUnderwriter its written opinion, upon certificates of officers of dated such Delivery Date and addressed to you, in form and substance reasonably satisfactory to the Company and its subsidiaries and certificates of public officials. Underwriter, substantially to the effect set forth in Exhibit C-6.
(h) The Underwriter shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated such Delivery Date, and addressed to the Underwriter, with respect to the sale of the Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Partnership Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(i) The Partnership shall have furnished to the Underwriter a certificate of the President or a Vice President Partnership, signed on behalf of the Company Partnership by the Principal Executive Officer and of the chief financial or chief accounting officer of the CompanyPrincipal Financial Officer, dated as of the Closing Timesuch Delivery Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Partnership Parties in Section 1 hereof this Agreement are true and correct on and as of such Delivery Date, with the same force and effect as though expressly if made at on such Delivery Date, and as each of the Closing Time, (iii) the Company has Partnership Parties have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Time, and such Delivery Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued, and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Partnership’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Underwriter Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(j) The Partnership Parties shall have received from requested and caused Ernst & Young LLP a letterto have furnished to the Underwriter, at the Execution Time and at such Delivery Date, letters, dated respectively as of the Execution Time and such dateDelivery Date, in form and substance satisfactory to the Underwriter containing statements and information Underwriter, (i) confirming that they are an independent registered public accounting firm within the meaning of the type ordinarily included in accountants' "comfort letters" to Act and the Underwriter Exchange Act and the applicable rules and regulations thereunder, adopted by the Commission and the PCAOB, and (ii) stating their conclusions and findings with respect to the financial statements information and certain financial information contained other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the Registration StatementUnited States.
(k) Subsequent to the Execution Time or, if earlier, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties or results of operations of the Company and its subsidiaries Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the Securities on offering or delivery of the terms Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(l) Prior to such Delivery Date, the Partnership Parties shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the manner contemplated rating of any of the Partnership Entities’ debt securities, if any such securities are outstanding, by any “nationally recognized statistical rating organization” (within the meaning of the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the Prospectus. direction of the possible change.
(n) The Partnership shall have submitted proper notifications regarding the listing of the Units to the NASDAQ Global Market.
(o) At the Closing Execution Time, the Securities Partnership Parties shall have been approved for listing on furnished to the New York Stock Exchange, subject only to official notice Underwriter a letter substantially in the form of issuance. The Underwriter shall have received Exhibit A hereto from each of the signed Lock-Up Agreements referred to in Section 5(jpersons listed on Schedule IV hereto.
(p) hereof, At the date of this Agreement and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of DeliveryDate, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date received from the Partnership a certificate substantially in the form of Delivery, Exhibit D hereto and signed by the Principal Financial Officer of the President or a Vice President Partnership. If any of the Company conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the chief financial opinions and certificates mentioned above or chief accounting officer elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Company confirming that Underwriter hereunder may be canceled at, or at any time prior to, the certificate Closing Date or any settlement date by the Underwriter. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter hereunder, as to purchase the Securities Shares to be delivered at each Delivery Date, shall be subject subject, in its discretion, to the accuracy of the condition that all representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the other statements of the Company made in any certificates delivered by herein are, at and as of the date hereof and each Delivery Date, true and correct and the condition that the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company shall have performed all of its obligations hereunder theretofor to be performed, and to the following additional conditions: :
(a) The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or Prospectus, and, any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commissionsuch supplement, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (); no stop order suspending the use of the Prospectus or a post-effective amendment providing such information any Issuer Free Writing Prospectus shall have been filed issued and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter no proceeding for that purpose shall have received (i) been initiated or, to the favorable opinion, dated as knowledge of the Closing TimeCompany, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) On each Delivery Date, Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.(US) LLP, counsel for the Underwriter, shall have furnished to you an opinion or opinions, dated such dates, with respect to the issuance and sale of the Shares on each such Delivery Date, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) On each Delivery Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Rosenman LLP (“Katten”), counsel for the Company, shall have furnished to you its written opinion, dated such dates, in form and substance satisfactory to counsel for the Underwriteryou, to the effect set forth that:
(i) Neither the Company nor its subsidiaries are an “investment company” as such term is defined in Exhibit A-2 hereto and to such further effect the Investment Company Act of 1940, as counsel to the Underwriter may reasonably request, and amended;
(ii) The Company and its subsidiaries have been duly incorporated or organized and are validly existing as corporations or limited liability companies, as applicable, in good standing under the favorable opinionlaws of their respective jurisdictions of incorporation or organization, dated with corporate power and authority to own or lease their respective properties and conduct their respective businesses as described in the Disclosure Package and the Prospectus, and each of the Closing Time, Company and its subsidiaries is duly qualified to do business and are in good standing in each jurisdiction in which it owns or leases property or conducts business so as to require such qualification except where the failure to so qualify would not result in a Material Adverse Effect;
(iii) All of the General Counsel issued shares of capital stock of the Company have been duly authorized and validly issued and conform to the description contained in the Prospectus; and there are no preemptive or similar rights to subscribe for or to purchase any securities of the Company under the Amended and Restated Certificate of Incorporation of the Company or under Delaware law;
(iv) The Registration Statement has been declared effective under the Securities Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b), to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened under the Securities Act;
(v) The Shares have been duly authorized and, when issued and delivered against payment therefor as provided herein, will be validly issued and fully paid and nonassessable and conform to the description of the Shares contained in the Prospectus, as amended or supplemented, and will be free of statutory preemptive rights and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(vi) To such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or its subsidiaries is subject which, if determined adversely to the Company or its subsidiaries would individually or in the aggregate, have a Material Adverse Effect, and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws);
(viii) The issuance and sale of the Shares and the performance of this Agreement by the Company and the consummation of the other transactions contemplated by this Agreement will not result in any violation of the provisions of the certificate of incorporation, bylaws, articles of organization or operating agreement of the Company or its subsidiaries, as applicable, or of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or its subsidiaries or any of their respective properties;
(ix) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Shares by the Company or the consummation by the Company of the other transactions contemplated by this Agreement, except such as have been obtained under the Securities Act, such as may be required under state securities or Blue Sky laws, any necessary listing application with NASDAQ, and such as may be required under the rules of FINRA in connection with the purchase and distribution of the Shares by the Underwriter;
(x) The Registration Statement, the Disclosure Package and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Delivery Date (other than the financial statements and related schedules and other financial and statistical information included therein and information furnished for use therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations thereunder; the eligibility requirements for the use of Form S-3 in connection with the registration of Shares were met at the time of filing the Registration Statement; and the Registration Statement meets, and the offering and sale of the Shares as contemplated by the Underwriting Agreement complies with, the requirements of Rule 415 under the Act;
(xi) The Amended and Restated Certificate of Incorporation of the Company and the Second Amended and Restated By-laws of the Company, each in the form filed as an exhibit to the Registration Statement, have been duly adopted and are in full force and effect as of the date hereof, in each case in accordance with responsibility the Delaware General Corporation Law, and the Amended and Restated Certificate of Incorporation has been filed as required with the Secretary of State of Delaware;
(xii) The Shares are duly listed and authorized for trading, subject to official notice of issuance, on The NASDAQ Stock Market;
(xiii) To such counsel’s knowledge, there are no contracts, licenses, agreements, leases or documents of any character that are required to be described in the Registration Statement, the Disclosure Package and the Prospectus or to be filed as an exhibit to the Registration Statement, the Disclosure Package and the Prospectus that have not been so described or filed as required; and
(xiv) Except for the legal affairs rights described in the Prospectus that have not been exercised, no person has the right, pursuant to the terms of any contract, agreement or other instrument described in or filed as an exhibit to the Registration Statement or any Incorporated Documents, or otherwise known to us, to cause the Company to register under the Securities Act any shares of capital stock of the Company or to include any such shares in the Registration Statement or the offering contemplated thereby. In rendering such opinions, such counsel may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries, in form and substance satisfactory public officials. On each Delivery Date, Katten shall also deliver a letter to counsel for the Underwriteryou stating that nothing has come to its attention which leads it to believe that, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Timeeffective date of the Registration Statement and as of each Delivery Date, the Registration Statement, the Disclosure Package or the Prospectus or, as of ▇its date, any further amendment or supplement thereto made by the Company prior to the Delivery Date (in each case, except for the financial statements and the related schedules and other financial and statistical information included therein, as to which such counsel need not address) contains an 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, in the light of the circumstances under which they were made, not misleading. With respect to such statement, such counsel may state that its belief is based upon the procedures set forth therein, but is without independent check or verification.
(d) At 10:00 a.m., Richmond, Virginia time, on the date of this Agreement and also at each Delivery Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter LLP shall have received furnished to you a certificate of the President letter or a Vice President of the Company and of the chief financial or chief accounting officer of the Companyletters, dated as the respective dates of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such datedelivery thereof, in form and substance satisfactory to the Underwriter you, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to the Underwriter underwriters with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection .
(ei) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time The Company and each Date of Delivery, as the case may be, there its subsidiaries shall not have been, sustained since the date hereof of the latest audited financial statements included in the Prospectus, any loss or interference with their respective businesses 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 expressly contemplated in the Disclosure Package and the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus and there shall not have been any change in the General Disclosure Package, capital stock or long-term debt of the Company or its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the conditiongeneral affairs, management, financial or otherwiseposition, or in the earnings, business, prospects, properties stockholders’ equity or results of operations of the Company or its subsidiaries, otherwise than as set forth or contemplated in the Disclosure Package and its subsidiaries taken the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Delivery Date on the terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on the NASDAQ; or (iii) (A) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, or (B) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, including without limitation, as a wholeresult of terrorist activities occurring after the date hereof, whether if the effect of any such event specified in clause (A) or not arising in the ordinary course of business, that(B), in the reasonable judgment of the Underwriter, Underwriter makes it impracticable or inadvisable to market proceed with the Securities public offering or the delivery of the Shares being delivered at such Delivery Date on the terms and in the manner contemplated in the Disclosure Package or Prospectus. At the Closing Time, the Securities .
(g) The Company shall have been approved for listing on furnished or caused to be furnished to you copies of agreements between the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received Company and each of the signed Lock-Up Agreements referred executive officers and directors of the Company named on Schedule III hereto, in form and content satisfactory to in Section 5(j) hereofyou, and each pursuant to which such Lock-Up Agreement shall be in full force and effect at persons agree not to offer, sell, or contract to sell, or otherwise dispose of any shares of the Closing Time and each Date of DeliveryCommon Stock beneficially owned by them, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion securities convertible into, or exchangeable for, shares of Common Stock on or before the ninetieth (90th) day after the date of this Agreement without your prior written consent.
(h) The Company shall have furnished or caused to be furnished to you on the date of this Agreement and on each Delivery Date certificates of officers of the Option Securities, Company satisfactory to you as to the accuracy of the representations and warranties of the Company contained herein at and as of the date hereof and the statements in any certificates furnished Delivery Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Delivery Date, as to the matters set forth in subsections (a) and (e) of this Section 7 and as to such other matters as you may reasonably request.
(i) The Shares shall have been approved for quotation and trading on the NASDAQ.
(j) FINRA shall not have raised any subsidiary objection with respect to the fairness or reasonableness of the Company hereunder shall be true and correct as of each Date of Delivery andunderwriting, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, or other arrangements of the President or a Vice President transactions contemplated hereby. If any of the Company conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the chief financial opinions and certificates mentioned above or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, each Delivery Date by the Underwriter, dated . Notice of such Date of Delivery, relating cancellation shall be given to the Option Securities to be purchased on such Date Company in writing, or by telephone or facsimile (with written confirmation of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofreceipt).
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The Underwriter's obligation of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
6.1 No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, ; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission in the manner and within the time period required by pursuant to Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Timeany change, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Companyor any development involving a prospective change, in form and substance satisfactory to counsel for or affecting the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel business or properties of the Company, _______________________, a __________ corporation (the "Seller"), and its successors and assigns the Seller or any of their respective affiliates the effect of which, in any case, is, in that Underwriter's reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with responsibility for the legal affairs offering or the delivery of the Company Certificates as contemplated by the Registration Statement and its subsidiaries, in form the Prospectus. All actions required to be taken and substance satisfactory all filings required to counsel for be made by the Underwriter, Issuer under the Act and the Exchange Act prior to the effect set forth in Exhibit A-3 hereto and sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to such further effect as counsel to the Underwriter may reasonably request. At you a certificate, dated the Closing TimeDate, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a the Executive Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(i) there has been no Material Adverse Change since the date hereof, (iia) the representations and warranties of the Company in Section 1 hereof this Agreement and in the Pooling and Servicing Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, in all material respects;
(iiib) the Company has has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date;
(ivc) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory contemplated;
(d) subsequent to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Prospectus, and except as set forth or contemplated in the General Disclosure PackageProspectus, there has not been any material adverse change, or any development involving a prospective material adverse change, change in the condition, financial or otherwise, or in the earningsgeneral affairs, business, prospectskey personnel, properties capitalization, financial condition or results of operations of the Company and its subsidiaries taken or the Seller;
(e) except as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated otherwise stated in the Prospectus. At , there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to their knowledge, threatened, against the Closing Time, Company or the Securities shall Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Certificates have been approved for listing on rated in one of the New York Stock Exchange, subject only to official notice four highest grades by each of issuance. The Underwriter such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 You shall have received each the opinions of Thacher Proffitt & Wood LLP, special counsel for the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificateCompany, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of th▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇nd ▇▇▇▇tantially to the effect set forth in Exhibit A and Exhibit B.
6.5 You shall have received from counsel for the Underwriter, an opinion dated the Closing Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by the Underwriter, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the captions "Description of the Mortgage Pool", "Pooling and Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the records of the Company excluding any questions of legal interpretation.
6.7 The Certificates shall have been rated "AAA" by [each of] [Standard & Poor's Ratings Services] and [Fitch Ratings] and "Aaa" by [Moody's Investors Service, Inc.].
6.8 You shall have receive▇ ▇▇▇ ▇pinion of [Trustee's Counsel], dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from Thacher Proffitt & Wood LLP, special counsel to the Company, and from ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ L.L.P., counsel for the to ▇▇▇ Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and the General Counsel [Fitch Ratings] and [Moody's Investors Service, Inc.]. The Company will furnish y▇▇ ▇▇▇▇ conformed copies of the Companyabove opinions, in form certificates, letters and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect documents as the opinions required by Section 6(b) hereofyou reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (MILA Mortgage Acceptance, Inc.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter Underwriter, as to purchase the Securities to be purchased at each Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof and at and as of the execution of this Agreement, the Closing such Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and at regulations under the Closing Time Act and in accordance with Section 5(A)(a); the final term sheet contemplated by Section 5(A)(a), and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or proceedings therefor preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, ; and any request all requests for additional information on the part of the Commission for additional information from the Company shall have been complied with to your reasonable satisfaction.
(b) J▇▇▇▇ Day, counsel for the reasonable satisfaction of counsel Company, shall have furnished to the Underwriter. A prospectus containing Underwriter an opinion, dated such Time of Delivery, with respect to such matters as the Rule 430B Information Underwriter may reasonably require.
(c) The Company shall have been filed furnished to the Underwriter an opinion, dated such Time of Delivery, of National City Corporation Law Department, counsel for the Company, with respect to such matters as the Commission in the manner and within the time period required by Rule 424(bUnderwriter may reasonably require.
(d) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the The Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of from S▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇C▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion or opinions, dated such counsel Time of Delivery, with respect to such matters as the Underwriter may rely, as to all matters governed by reasonably require.
(e) On the laws of jurisdictions other than the law date of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received Prospectus at a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or time prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, at 9:30 A.M., New York City time, on the Underwriter shall have received from effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at such Time of Delivery, (1) Ernst & Young LLP shall have furnished to you a letterletter or letters, dated as the respective dates of such datedelivery thereof, in form and substance satisfactory to the Underwriter you, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to the Underwriter underwriters with respect to the financial statements and statements, certain financial information contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus. At Prospectus and such other information specified therein and (2) the Closing Time, the Underwriter Company shall have received from Ernst & Young LLP furnished or caused to be furnished to you a lettercertificate or certificates of the Chief Financial Officer of the Company, dated as the respective dates of Closing Timedelivery thereof, in form and substance satisfactory to you, containing statements and information with respect to the effect that they reaffirm the statements made financial statements, certain financial information contained in the letter furnished pursuant to subsection Registration Statement and the Prospectus and such other information specified therein, based on an examination of the Company’s financial records and schedules undertaken by the Chief Financial Officer or members of his staff who are responsible for the Company’s financial and accounting matters.
(ef) Neither the Company nor any of this Section, except that the specified date referred to its Significant Subsidiaries shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, sustained since the date hereof of the latest audited financial statements included or incorporated by reference in the Pricing 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, other than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus and there shall not have been any change in the General Disclosure Package, capital stock or long-term debt of the Company or any material adverse of its subsidiaries or any change, or any development involving that is reasonably likely to involve a prospective material adverse change, in or affecting the conditiongeneral affairs, management, financial or otherwiseposition, or in the earnings, business, prospects, properties stockholders’ equity or results of operations of the Company and its subsidiaries taken subsidiaries, other than as a whole, whether set forth or not arising contemplated in the ordinary course Pricing Prospectus, the effect of business, thatwhich, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Underwriter, makes Underwriter so material and adverse as to make it impracticable or inadvisable to market proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities .
(g) The Company shall have been approved for listing complied with the provisions of the first sentence of Section 5(A)(d) with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, subject only 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 G▇▇▇▇▇▇, S▇▇▇▇ & Co. makes it impracticable or inadvisable to official notice proceed with the public offering or the delivery of issuance. The Underwriter the Securities being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus.
(j) Any actions required for the shares of Stock issuable upon conversion of the Securities to be duly listed for quotation on the New York Stock Exchange shall have received each been taken.
(k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the signed Lock-Up Agreements referred Company satisfactory to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at you as to the Closing Time and each Date accuracy of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein at and as of such time, as to the statements in any certificates furnished performance by the Company of all of its obligations hereunder to be performed at or any subsidiary of the Company hereunder shall be true and correct prior to such time, as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities matters set forth in subsections (a) and (f) of this Section and as to be purchased on such Date of Delivery and otherwise to the same effect other matters as the opinions required by Section 6(b) hereofyou may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Underwriter shall have received from Deloitte & Touche LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and at the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Time Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Company or proceedings therefor initiated or threatened the Underwriter, shall have been contemplated by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with .
(c) Subsequent to the reasonable satisfaction execution and delivery of counsel to the Underwriter. A prospectus containing the Rule 430B Information this Agreement, there shall not have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received occurred (i) the favorable opinionany change, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Companyor any development involving a prospective change, in form and substance satisfactory to counsel for or affecting particularly the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel business or properties of the Company, with responsibility for any Servicer or the legal affairs of the Company and its subsidiariesMaster Servicer which, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, to materially impairs the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as investment quality of the Closing TimeOffered Certificates; (ii) any downgrading in the ratings of the securities of any Servicer or the Master Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its ratings of any securities of any Servicer or the Master Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPsuch rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, counsel or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, in form and substance reasonably satisfactory the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law proceed with completion of the State sale of New York and payment for the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of the President or a Vice President an executive officer of the Company and of the chief financial or chief accounting in which such officer of the Company, dated as of the Closing Timeshall state that, to the effect that best of such officer's knowledge after reasonable inspection, (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company contained in Section 1 hereof the Basic Documents are true and correct with the same force and effect as though expressly if made at and as of on the Closing Time, Date and (iiiii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date.
(ive) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the The Underwriter shall have received from Ernst & Young LLP a letteran opinion of reasonably acceptable counsel to the Master Servicer and the Securities Administrator, dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of counsel for the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. .
(f) The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, special counsel for to the CompanyCompany and Bank of America, and National Association, dated the General Counsel of the CompanyClosing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Underwriter, a letter addressed to the Underwriter dated the Closing Date with respect to the Final Prospectus, substantially to the effect that no facts have come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, 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, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(i) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(j) At the Closing Date, the Certificates and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(k) The Underwriter shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(l) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(m) The Underwriter shall have received a certificate (upon which ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated such the Closing Date of Deliveryan officer of the Custodian in which such officer shall state that, relating to the Option Securities best of such officer's knowledge after reasonable investigation: (i) the Custodian is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Custodian (the "Custodian Disclosure") includes (a) the Custodian's correct name and form of organization and (b) a discussion of the Custodian's procedures for safekeeping and preservation of the mortgage loans; and (iii) the Custodian Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Custodian Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(n) The Underwriter shall have received a certificate (upon which ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated the Closing Date of an officer of the Trustee in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) the Trustee is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement (ii) the information in the Prospectus Supplement related to the Trustee (the "Trustee Disclosure") includes (a) the Trustee's correct name and form of organization and (b) a discussion of the Trustee's experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Trustee Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(o) The Underwriter shall have received a certificate (upon which ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated the Closing Date of an officer of Washington Mutual Bank and ▇▇▇▇▇ Fargo Bank, N.A. (each a "Significant Originator" and together the "Significant Originators") in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) such Significant Originator is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to such Significant Originator (the "Originator Disclosure") includes such Significant Originator's correct name, form of organization and length of time originating mortgage loans; (iii) the description of such Significant Originator's origination program includes (a) experience in originating mortgage loans, (b) size and composition of such Significant Originator's origination portfolio, and (c) such Significant Originator's credit-granting or underwriting criteria for the mortgage loans; (iv) except as set forth in the Originator Disclosure, no additional information regarding such Significant Originator's origination program could have a material adverse affect in the performance of the pool assets or the Offered Certificates; and (v) such Originator Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Originator Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The requirement to provide a certificate pursuant to the preceding sentence shall be deemed satisfied if such Significant Originator represents and warrants that the Originator Disclosure satisfies the relevant provisions of Regulation AB under the Act.
(p) The Underwriter shall have received a certificate (upon which ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated the Closing Date of an officer of Washington Mutual Bank and ▇▇▇▇▇ Fargo Bank, N.A. (each a "Significant Servicer" and together the "Significant Servicers") and the Master Servicer in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) such Significant Servicer or Master Servicer is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to such Significant Servicer or Master Servicer (the "Servicer Disclosure") includes (a) such Significant Servicer's or Master Servicer's correct name and form of organization, (b) the correct length of time that such Significant Servicer or Master Servicer has been servicing mortgage loans; and (c) a discussion of such Significant Servicer's or Master Servicer's experience in servicing mortgage loans; (iii) except as set forth in the Servicer Disclosure, (a) there are no other servicers responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, (b) there have been no material changes to such Significant Servicer's or Master Servicer's servicing policies and procedures during the last three years, (c) no additional information regarding such Significant Servicer's or Master Servicer's financial condition could have a material affect on performance of the Offered Certificates, (d) no commingling of funds on deposit in collection accounts will be permitted by such Significant Servicer or Master Servicer, (e) no additional information with respect to any special or unique factors involved in servicing the mortgage loans could have a material affect on performance of the Offered Certificates, and (f) no additional information with respect to such Significant Servicer's or Master Servicer's process for handling delinquencies, losses, bankruptcies and recoveries could have a material affect on performance of the Offered Certificates; (iv) for any Significant Servicer or Master Servicer identified in the Prospectus Supplement as responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, the certifications in clauses (ii) and (iii) above are made with respect to such Significant Servicer or Master Servicer; and (v) the Servicer Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Servicer Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The requirement to provide a certificate pursuant to the preceding sentence shall be deemed satisfied if such Significant Servicer or Master Servicer represents and warrants that the Servicer Disclosure satisfies the relevant provisions of Regulation AB under the Act. The Company will provide or cause to be purchased on such Date of Delivery and otherwise provided to the same effect Underwriter such conformed copies of such opinions, certificates, letters and documents as the opinions Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6(b) hereof7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding 2006-J Trust)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with requested and caused Ledgewood PC, counsel for the Company, to have furnished to the reasonable satisfaction of counsel Underwriter its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Underwriter in form and substance acceptable to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b.
(c) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the The Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form its opinions and substance reasonably satisfactory negative assurance letter, dated the Closing Date and any settlement date and addressed to the Underwriter. In giving such opinion , and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
(d) The Company shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President Company, signed by the Chief Executive Officer or a Vice President of the Company and of the chief financial or chief accounting officer Chief Financial Officer of the Company, dated as of the Closing TimeDate and any settlement date, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct on and as of such date with the same force and effect as though expressly if made at on such date and as of the Closing Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and such date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or are pending or are contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Underwriter a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission. At , and (iv) as to the time incumbency of the execution officers of this Agreement, the Underwriter Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have received from Ernst & Young LLP a letterrequested and caused Withum to have furnished to the Underwriter, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of such the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and certain financial information contained statement schedules included in the Registration Statement, the General Disclosure Package Statutory Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, References to the effect that they reaffirm the statements made Prospectus in the letter furnished pursuant to subsection this paragraph (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since include any supplement thereto at the date hereof or since of the respective applicable letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties or results of operations of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the terms and in the manner contemplated in the Prospectus. At the Closing TimeNasdaq Global Market, the Securities satisfactory evidence of which shall have been approved provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter and the Services Agreement.
(k) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for listing on that purpose shall have been instituted or shall have been threatened.
(m) Prior to the New York Stock ExchangeClosing Date and any settlement date, subject only the Company shall have furnished to official notice the Underwriter such further information, certificates and documents as the Underwriter may reasonably request. If any of issuancethe conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Underwriter shall have received each of the signed Lock-Up Agreements referred documents required to in be delivered by this Section 5(j) hereof, and each such Lock-Up Agreement 6 shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofany applicable settlement date.
Appears in 1 contract
Sources: Underwriting Agreement (Ftac Zeus Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligation obligations ------------------------------------------------ of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Selling Stockholders contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company Company, the Operating Partnership and the Selling Stockholders made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Company, the Operating Partnership and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions: The :
(a) If the Registration Statement has not become effective and at prior to the Closing Time no stop order suspending Execution Time, unless the effectiveness of Underwriter 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 on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any notice objecting supplement thereto, is required pursuant to its use shall have been issued under Rule 424(b), the 1933 Act or proceedings therefor initiated or threatened by the CommissionProspectus, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been such supplement, will be filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information ); and no stop order suspending the effectiveness of the Registration Statement shall have been filed issued and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter no proceedings for that purpose shall have received been instituted or threatened.
(ib) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the The Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Assistant General Counsel and Assistant Secretary of the Company, to have furnished to the Underwriter his opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) the Company 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 in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly organized, is validly existing as a corporation, limited or general partnership or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the power and authority to own and lease its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the outstanding shares of the Company's Common Stock (including the Securities) and preferred stock have been duly authorized and validly issued and are fully paid and non-assessable and none of such shares was issued in violation of any preemptive or similar rights;
(iv) the outstanding Ownership Interests in each subsidiary have been duly authorized and validly issued, are fully paid and (except for general partnership interests) non-assessable; all of the outstanding limited partnership interests in the Operating Partnership are owned (except as otherwise set forth in the Prospectus) directly by the Company, all of the outstanding general partnership interests in the Operating Partnership are owned directly by the Company, and all of the Company's Ownership Interests in each of the other subsidiaries are owned directly or indirectly by the Company, in each case free and clear of all liens, encumbrances, equities or claims, except for liens created by the Pledge Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership;
(vi) the execution and delivery by the Company and the Operating Partnership of, and the performance by the Company and the Operating Partnership of their respective obligations under, this Agreement will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, the Credit Agreement, any Senior Note Document or, to the best of such counsel's knowledge, any other agreement or instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (B) result in a breach or violation of or default under any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries; and no consent, approval, authorization or order of, or qualification with, any Maryland or Delaware governmental body or agency having jurisdiction over the Company or the Operating Partnership is required under the laws of the State of Maryland or the Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") for the offering, issuance or sale of the Securities as contemplated by this Agreement, except such as may be required by Maryland securities laws;
(vii) the statements (A) in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000 (the "2000 10-K") under the captions "Business and Properties--Environmental and Regulatory Matters," "Business and Properties--The Management Agreements," "Business and Properties--Non-competition Agreements," "Legal Proceedings," and (B) in the Company's Proxy Statement dated April 12, 2001 under the caption "Certain Relationships and Related Transactions," in each case insofar as such statements constitute summaries of legal matters, documents or proceedings, are accurate in all material respects;
(viii) to the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and that are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(ix) the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(x) each document filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act (except for financial statements and schedules and other financial and statistical data, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder. In passing upon compliance as to form of such documents, such counsel may assume that the statements made and incorporated by reference therein are correct and complete.
(c) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company and the Operating Partnership, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect as set forth in Schedule III.
(d) In addition to the opinion set forth above in Section 6(b), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, will also state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, and representatives of the Underwriter, at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel may state that such counsel is not passing upon, and does not assume any responsibility for the accuracy, completeness or fairness of, the statements contained or incorporated by reference in the Registration Statement and the Prospectus and such counsel has not made any independent check or verification thereof (except as set forth in Section 6(b)(vii)), during the course of such participation, no facts came to such counsel's attention that have caused such counsel to believe that the Registration Statement, at the time it 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, as of May 2, 2001 or as of the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such counsel may state that they express no belief with respect to the financial statements, schedules and other financial and statistical data included or incorporated by reference in or omitted from the Registration Statement or the Prospectus. The opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. described in Sections 6(b) and 6(c) above shall state, solely in the case of those opinions of counsel which refer to subsidiaries of the Company, that all references in such opinions to "subsidiaries" of the Company include, without limitation, the Operating Partnership and the Non-Controlled Subsidiaries. In addition, the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall state that it covers matters arising under the laws of the State of Maryland, the general corporation law of the State of Delaware (the "DGCL"), the Partnership Act, the Delaware Limited Liability Company Act and the federal laws of the United States, and shall further state that, to the extent that the opinion set forth in Section 6(b)(vi) relates to any instrument or agreement which is governed by the laws of any jurisdiction other than the State of Maryland, such counsel has assumed that the laws of such other jurisdiction are in all relevant respects identical to the laws of the State of Maryland; the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state that it covers matters arising under the laws of the State of Maryland, the Partnership Act and the federal laws of the United States.
(e) The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Stockholders, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) Each Selling Stockholder is the sole registered owner of the Securities to be sold by such Selling Stockholder; each Selling Stockholder has full partnership or corporate power, right and authority to sell such Securities and upon payment for and delivery of the Securities in accordance with this Agreement, the Underwriter will acquire a security entitlement (within the meaning of the UCC) with respect to the Securities and will also acquire their interest in the Securities free of any adverse claim (within the meaning of the UCC), assuming that the Underwriter does not have notice of any adverse claim (within the meaning of the UCC) to the Securities and assuming further that the transfer agent for the Company's Common Stock properly performs the instructions provided by the Selling Stockholders and delivers the Securities by book-entry transfer to the Underwriter.
(ii) This Agreement has been duly authorized, executed and delivered by or on behalf of each Selling Stockholder.
(iii) The sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement will not breach or result in a default under any indenture or other agreement or instrument identified on a schedule annexed to such opinion furnished to such counsel by the Selling Stockholders and which each Selling Stockholder has represented lists all material instruments to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, nor will such action violate the constituting documents of any Selling Stockholder or any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any rule or regulation issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act by any court or governmental agency or body or court having jurisdiction over any Selling Stockholder or any of its properties.
(iv) No consent, approval, authorization, order, registration or qualification of or with any Federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or, to our knowledge, any Federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act is required for the sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement, except for the registration under the Securities Act of the Securities, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriter.
(f) The Underwriter shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & Wood LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory addressed to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory with respect to the Underwriter. Such counsel Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may also state thatreasonably require, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of and the Company and its subsidiaries and certificates of public officials. The Underwriter each Selling Stockholder shall have received furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter and to the Selling Stockholders a certificate of the President or a Vice President of Company, signed by an executive officer and the Company and of the chief principal financial or chief accounting officer of the Company, dated in their capacity as executive officers of the Company and in their capacity as executive officers of the general partner of the Operating Partnership, dated the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company and the Operating Partnership in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Timeor, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.Com
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The Underwriter’s obligation of the Underwriter to purchase the Securities Certificates shall be subject to (i) the accuracy on and as of the Closing Date of the representations and warranties on the part of Alliance Bancorp and the Company contained herein contained; (ii) the performance by Alliance Bancorp and the Company of all of its obligations hereunder; and (iii) the following conditions as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no Date:
6.1 No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, ; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission in the manner and within not later than the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information under the Act.
6.2 Since May 1, 2007, there shall have been filed no material adverse change (or any development involving a prospective change) in the sole judgment of the Underwriter in the condition of the Company or Alliance Bancorp that, in the judgment of the Underwriter, impairs the investment quality of the Certificates so as to make it impracticable or inadvisable to market the Certificates on the terms and become effective in accordance with the requirements of Rule 430B). At manner contemplated in the Prospectus.
6.3 The Company shall have delivered to the Underwriter a certificate, dated the Closing TimeDate, of the President, a Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has examined this Agreement, the Underwriter Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement and all other Transaction Documents to which it is a party are true and correct in all material respects; and
(b) the Company has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
6.4 Alliance Bancorp shall have received (i) delivered to the favorable opinionUnderwriter a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of Alliance Bancorp to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to his or her actual knowledge the representations and warranties of Alliance Bancorp, in this Agreement and all other Transaction Documents to which Alliance Bancorp is a party are true and correct in all material respects as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Date.
6.5 The Underwriter shall have received the favorable opinion, dated as opinions and a letter of the Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Company, dated the Closing Date and substantially to the effect set forth in Exhibit A-l, Exhibit A-2 and Exhibit A-3 and the opinion of in-house counsel for Alliance Bancorp, dated the Closing Date and substantially to the effect set forth in Exhibit ▇-▇.
6.6 The Underwriter shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Underwriter, an opinion dated the Closing Date in form and substance satisfactory to the Underwriter.
6.7 The Certificates shall have been rated at least as described directly below by Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and ▇▇▇▇▇'▇ Investors Service, Inc. (“▇▇▇▇▇'▇”). Class A-1 AAA Aaa Class A-2 AAA Aaa Class A-3 AAA Aaa Class M-1 AA+ Aaa Class M-2 AA Aa1 Class M-3 AA- Aa1 Class M-4 A+ Aa2 Class M-5 A Aa3 Class M-6 A- A1 Class M-7 BBB+ A2 Class M-8 BBB A3 Class M-9 BBB- Baa1 The Underwriter shall have received a copy of the letter from each of the respective rating agencies to such effect; and such ratings shall not have been withdrawn on or before the Closing Date.
6.8 The Underwriter shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC special counsel to the Trustee, dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 The Underwriter shall have received from KPMG, certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter’s counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by the Underwriter, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the captions “The Mortgage Pool”, “Description of the Certificates”, “Yield on the Certificates” and “Pooling and Servicing Agreement” (and for the avoidance of doubt, any static pool data pursuant to Item 1105 of Regulation AB under the 1933 Act Regulations included or incorporated by reference in the Definitive Free Writing Prospectus or the Prospectus) agrees with the records of the Company excluding any questions of legal interpretation.
6.10 The Underwriter shall have received from ▇▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for to the Company, and the General Counsel of from in-house counsel to the Company, reliance letters with respect to any opinions delivered to Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and ▇▇▇▇▇’▇ Investors Service, Inc.
6.11 The Underwriter shall have received a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of Alliance Bancorp and the Company as to the good standing of Alliance Bancorp and the Company and the due authorization by Alliance Bancorp of the transactions contemplated herein.
6.12 The Underwriter shall have received such further information, certificates and documents as the Underwriter 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 reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter and the Underwriter’s counsel.
6.13 The information contained in the Definitive Free Writing Prospectus and the Prospectus in the section “RISK FACTORS—The Sponsor and Servicer and Its Parent Have Breached Certain Covenants Under Their Respective Financing Arrangements” is true and correct in all material respects.
6.14 No lender has exercised any remedy with respect to a default under any indenture, dated such Date contract, lease, mortgage, deed of Deliverytrust, relating note, agreement or other evidence of indebtedness or other agreement, obligation or instrument to which Alliance Bancorp, the Company or any of their affiliates is a party or by which it or its properties are bound which would have a material adverse affect on the financial condition of Alliance Bancorp or the Company or their ability to enter into the transactions contemplated by this Agreement. The Company will furnish the Underwriter with conformed copies of the above opinions, certificates, letters and documents as you reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or, if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Option Securities Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to be purchased on such Date Alliance Bancorp and the Company in writing, or by telephone or telegraph confirmed in writing. If the Underwriter terminates as a result of Delivery this provision, Alliance Bancorp and otherwise to the same effect as Company shall reimburse the opinions required by Section 6(b) hereofUnderwriter for all reasonable out of pocket expenses, including fees of counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Alliance Bancorp Trust 2007-Oa1)
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Underwriter shall have received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and at the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Time Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Company or proceedings therefor initiated or threatened the Underwriter, shall have been contemplated by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with .
(c) Subsequent to the reasonable satisfaction execution and delivery of counsel to the Underwriter. A prospectus containing the Rule 430B Information this Agreement, there shall not have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received occurred (i) any change, or any development involving a prospective change, in or affecting particularly the favorable opinion, dated as business or properties of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for Company or the CompanyServicer which, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, to materially impairs the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to investment quality of the Underwriter may reasonably request, and Offered Certificates; (ii) any downgrading in the favorable opinion, dated as rating of the Closing TimeServicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the General Counsel New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the CompanyUnited States is involved, with responsibility for the legal affairs any declaration of the Company and its subsidiarieswar by Congress or any other substantial national or international calamity or emergency if, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as proceed with completion of the Closing Time, sale of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel and payment for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of the President or a Vice President an executive officer of the Company and of the chief financial or chief accounting in which such officer of the Company, dated as of the Closing Timeshall state that, to the effect that best of such officer's knowledge after reasonable inspection, (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company contained in Section 1 hereof the Basic Documents are true and correct with the same force and effect as though expressly if made at and as of on the Closing Time, Date and (iiiii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date.
(ive) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the The Underwriter shall have received from Ernst & Young LLP a lettercertificate of an executive officer of BANA, dated as of the Closing Date, to the effect that, to th▇ ▇▇st of such dateofficer's knowledge, (i) the representations and warranties contained in the Mortgage Loan Purchase Agreement are true and correct with the same force and effect as though made on and as of the Closing Date and (ii) such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to BANA or the Mortgage Loans originated or acquired by BANA, contains any untrue statement of a material fact 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.
(f) The Underwriter shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special counsel to the Com▇▇▇▇, ▇▇▇▇d the Clos▇▇▇ D▇▇▇, in form and substance satisfactory to the Underwriter containing statements and information counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the type ordinarily included in accountants' "comfort letters" Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter with respect or accompanied by reliance letters addressed to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter.
(h) The Underwriter shall have received from Ernst Cadwalader, Wickersham & Young LLP Taft LLP, special counsel for the Underwriter, a letterletter ▇▇ted ▇▇▇ Closing Date with respect to the Final Prospectus, dated as of Closing Time, substantially to the effect that they reaffirm nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, 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 made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse changetherein, in the conditionlight of the circumstances under which they were made, financial or otherwise, or not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the earnings, business, prospects, properties Final Prospectus or results of operations as to the adequacy or accuracy of the Company and its subsidiaries taken as a wholefinancial, whether numerical, statistical or not arising quantitative information included in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Final Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. .
(i) The Underwriter shall have received each an opinion of reasonably acceptable counsel to the signed Lock-Up Agreements referred to in Section 5(j) hereofTrustee, and each such Lock-Up Agreement shall be in full force and effect at dated the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the CompanyDate, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(j) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriter shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, dated and the Company shall have furnished to such Date of Delivery, relating counsel all documents and information that they may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Option Securities Underwriter such conformed copies of such opinions, certificates, letters and documents as the Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be purchased on such Date of Delivery in compliance with the provisions hereof only if they are in form and otherwise substance reasonably satisfactory to counsel for the Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the same effect Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as the opinions required by provided in Section 6(b) hereof7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Mortgage 2007-4 Trust)
Conditions to the Obligations of the Underwriter. The Underwriter’s obligation of the Underwriter to purchase the Securities Certificates in the respective amounts set forth opposite their names on Schedule I attached hereto shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
6.1 No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, Commission or by any authority administering any state securities or Blue Sky law; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission in the manner and within the time period required by pursuant to Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Timeany change, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Companyor any development involving a prospective change, in form and substance satisfactory to counsel for or affecting the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel business or properties of the Company, the Seller or any of their respective affiliates the effect of which, in any case, is, in that Underwriter’s reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with responsibility for the legal affairs offering or the delivery of the Company Certificates as contemplated by the Registration Statement and its subsidiaries, in form the Prospectus. All actions required to be taken and substance satisfactory all filings required to counsel for be made by the Underwriter, Issuer under the Act and the Exchange Act prior to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to the Underwriter may reasonably request. At a certificate, dated the Closing TimeDate, the Underwriter shall have received the favorable opinion, dated as of the Closing TimePresident, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPan Executive Vice President, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the Senior Vice President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement, the Servicing Agreements, the Mortgage Loan Purchase Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(i) there has been no Material Adverse Change since the date hereof, (iia) the representations and warranties of the Company in Section 1 hereof this Agreement and in the Pooling and Servicing Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, in all material respects;
(iiib) the Company has has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date;
(ivc) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory contemplated;
(d) subsequent to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Prospectus, and except as set forth or contemplated in the General Disclosure PackageProspectus, there has not been any material adverse change, or any development involving a prospective material adverse change, change in the condition, financial or otherwise, or in the earningsgeneral affairs, business, prospectskey personnel, properties capitalization, financial condition or results of operations of the Company and its subsidiaries taken or the Seller;
(e) except as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated otherwise stated in the Prospectus. At , there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to their knowledge, threatened, against the Company or the Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Certificates have been rated in one of the four highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 The Company shall have delivered to the Underwriter a certificate, dated the Closing TimeDate, of the President, an Executive Vice President, a Managing Director or a Director of the Company to the effect that the signer of such certificate has examined the Servicing Agreements, the Securities shall have been approved for listing on Pooling and Servicing Agreement, the New York Stock ExchangeMortgage Loan Purchase Agreement and this Agreement and that, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all his or any portion of the Option Securitiesher knowledge after reasonable investigation, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be this Agreement are true and correct as of each Date of Delivery and, at the relevant Date of Delivery, in all material respects.
6.5 The Seller shall have delivered to the Underwriter shall have received: Officers' Certificate. A a certificate, dated such Date of Deliverythe Closing Date, of the President President, a Managing Director or a Vice President Director of the Company Seller to the effect that the signer of such certificate has examined the Mortgage Loan Purchase Agreement and that, to his or her knowledge after reasonable investigation, the representations and warranties of the chief financial or chief accounting officer of Seller contained in the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains Mortgage Loan Purchase Agreement are true and correct as in all material respects.
6.6 You shall have received the opinion and letter of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of SNR ▇▇▇▇▇▇ US LLP, counsel for the Company and the Seller, dated the Closing Date and substantially to the effect set forth in Exhibit A and Exhibit B.
6.7 You shall have received from counsel for the Underwriter, an opinion dated the Closing Date in form and substance satisfactory to the Underwriter.
(i) You shall have received from Deloitte & Touche llp, certified public accountants, a letter addressed to the Underwriter and dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter’s counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by the Underwriter, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions “The Mortgage Pool” and “Description of the Certificates” agrees with the records of the Company and the Seller excluding any questions of legal interpretation.
(ii) At the Closing Date, Deloitte & Touche llp and/or any other firm of certified independent public accountants acceptable to you shall have furnished to you a letter, addressed to you, and in form and substance satisfactory to you in all respects, relating to the extent such information is not covered in the letter or letters provided pursuant to Section 6.8(i), to the characteristics of the mortgage loans, as presented in the Prospectus Supplement.
6.9 The Class A Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“Standard & Poor’s”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”).
6.10 You shall have received the opinion of ___________________, counsel to the Trustee, dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.11 You shall have received from SNR ▇▇▇▇▇▇ L.L.P.US LLP, counsel for to the Company, reliance letters with respect to any opinions delivered to Standard & Poor’s and the General Counsel Moody’s. The Company will furnish you with conformed copies of the Companyabove opinions, certificates, letters and documents as you reasonably request. If any of the conditions specified in this Article 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter, dated this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such Date of Delivery, relating cancellation shall be given to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required Company in writing, or by Section 6(b) hereoftelephone or telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Shellpoint Mortgage Acceptance LLC)
Conditions to the Obligations of the Underwriter. The Underwriter's obligation of the Underwriter to purchase the Securities Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
6.1 No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, ; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission in the manner and within the time period required by pursuant to Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information under the Act.
6.2 Since [________] [__], 20[__] there shall have been filed and become effective no material adverse change (not in accordance with the requirements ordinary course of Rule 430B). At business) in the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs condition of the Company and its subsidiariesor GMFI.
6.3 The Company shall have delivered to you a certificate, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At dated the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing TimeDate, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers an Authorized Officer of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that the signer of such certificate has examined this Agreement, the Approved Offering Materials, the Prospectus, the Trust Agreement, the Servicing Agreement, the Indenture and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(i) there has been no Material Adverse Change since the date hereof, (iia) the representations and warranties of the Company in Section 1 hereof this Agreement and in the Indenture are true and correct with the same force and effect as though expressly made at and as of the Closing Time, in all material respects; and
(iiib) the Company has has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing TimeDate.
6.4 GMFI shall have delivered to you a certificate, and (iv) no stop order suspending dated the effectiveness Closing Date, of an Authorized Officer of GMFI to the Registration Statement or any notice objecting to its use effect that the signer of such certificate has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by examined the Commission. At the time of the execution of this Trust Agreement, the Servicing Agreement, the Indenture and this Agreement and that, to the best of his or her knowledge after reasonable investigation, the representations and warranties of GMFI contained in the Servicing Agreement and in this Agreement are true and correct in all material respects.
6.5 You shall have received the opinions of Orrick, Herrington & Sutcliffe LLP, special counsel for the Company and GMFI, dated the Closing ▇▇▇▇ and ▇▇ ▇▇▇▇ ▇nd ▇▇▇▇▇▇▇▇e reasonably satisfactory to you, and the opinion of in-house counsel for the Company and GMFI, dated the Closing Date and in form and substance reasonably satisfactory to you.
6.6 The Underwriter shall have received from Ernst & Young LLP [________], certified public accountants, (a) a letter, letter dated as of such date, the date hereof and satisfactory in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing TimeUnderwriter's counsel, to the effect that they reaffirm have performed certain specified procedures, all of which have been agreed to by the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of DeliveryUnderwriter, as the case may be, there shall not have been, since the date hereof or since the respective dates as a result of which they determined that certain information is given of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions “Description of the Mortgage Pool”, “Description of the Agreements”, “Description of the Securities” and “Certain Yield and Prepayment Considerations” agrees with the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations records of the Company and its subsidiaries taken as a whole, whether or not arising in GMFI excluding any questions of legal interpretation and (b) the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable letter prepared pursuant to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities Section 4.4(e).
6.7 The Class A Notes shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter rated “AAA” by [_______] and “AAA” by [_________].
6.8 You shall have received each the opinion of [____________], counsel to the signed Lock-Up Agreements referred to in Section 5(j) hereofTrustee, and each such Lock-Up Agreement shall be in full force and effect at dated the Closing Time Date and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance reasonably satisfactory to counsel for you. The Company will furnish you with conformed copies of the Underwriterabove opinions, dated such Date of Deliverycertificates, relating to the Option Securities to be purchased on such Date of Delivery letters and otherwise to the same effect documents as the opinions required by Section 6(b) hereofyou reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Greenpoint Mortgage Securities LLC)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Notes as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter furnished pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective :
(a) For the period from and at after effectiveness of this Agreement and prior to the Closing Time Date:
(i) no stop order suspending the effectiveness of the Registration Statement Statement, or any notice objecting post-effective amendment to its use the Registration Statement, shall be in effect and no proceedings for such purpose shall have been issued under instituted or, to the 1933 Act or proceedings therefor initiated or Company’s knowledge, threatened by the Commission, and the Company shall not have received from the Commission any request on notice pursuant to Rule 401(g)(2) under the part Securities Act objecting to use of the Commission for additional information from automatic shelf registration statement form (unless the Notes are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Underwriter prior to the Closing Date);
(ii) the Company shall have been complied with to filed any Preliminary Prospectus and the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (under the Securities Act; or the Company shall have filed a post-effective amendment providing to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) all requests by the Commission for additional information shall have been filed and become effective in accordance complied with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment satisfaction of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Helix Energy Solutions Group Inc)
Conditions to the Obligations of the Underwriter. The obligation obligations of ------------------------------------------------ the Underwriter to purchase the Securities Offered Certificates of any Series shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein in this Agreement, as supplemented by the related Terms Agreement, as of the time of respective dates thereof and the execution of this Agreement, the related Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company made in any applicable officers' certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Agreement and such Terms Agreement and to the following additional conditions: The Registration Statement has become effective and at conditions applicable to the Closing Time no related Certificate Offering:
(a) No stop order suspending the effectiveness of the related Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(binstituted or threatened.
(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.L.L.P, counsel for the Company, in form and substance satisfactory shall have furnished to counsel for the UnderwriterUnderwriter an opinion, dated the related Closing Date, to the effect set forth in Exhibit A-2 hereto that:
(i) this Agreement and to such further effect as counsel to the Underwriter may reasonably request, related Terms Agreement have been duly executed and delivered by the Company under the law of the State of New York;
(ii) the favorable opinionrelated Pooling and Servicing Agreement has been duly executed and delivered by the Company under the law of the State of New York and is a legal, dated valid and binding agreement of the Company enforceable against the Company in accordance with its terms;
(iii) the Offered Certificates, when duly executed and countersigned by the Trustee in accordance with the related Pooling and Servicing Agreement, will be validly issued and outstanding and entitled to the benefits of such Pooling and Servicing Agreement;
(iv) the related Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the trust created thereunder is not required to be registered under the Investment Company Act of 1940, as amended;
(v) such counsel confirms that the related Registration Statement is effective under the Act and, to the best of such counsel's knowledge, no stop order with respect thereto has been issued, and no proceeding for that purpose has been instituted or threatened by the Commission; such Registration Statement (except the financial statements and schedules and other financial and statistical data included therein and the documents incorporated by reference therein, as to which such counsel need express no view), at the time it became effective and the related Prospectus (except the financial statements and schedules, the other financial and statistical data included therein and the documents incorporated by reference therein), as of the Closing Time, date of the General Counsel Prospectus Supplement conformed in all material respects to the requirements of the CompanyAct and the rules and regulations thereunder; and no information has come to the attention of such counsel that causes it to believe that (A) such Registration Statement (except the financial statements and schedules and the other financial and statistical data included therein and the documents incorporated by reference therein, with responsibility for as to which such counsel need express no view) at the legal affairs time it 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 (B) such Prospectus or any amendment or supplement thereto (except the financial statements and schedules and the other financial and statistical data included therein), as of the Company and its subsidiariesdate of the Prospectus Supplement, or at the related Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in form the light of the circumstances under which they were made, not misleading;
(vi) the statements set forth under the heading "Description of the Certificates" in the related Prospectus, insofar as such statements purport to summarize certain provisions of the related Pooling and substance satisfactory Servicing Agreement and the related Offered Certificates, provide a fair summary of such provisions;
(vii) the statements set forth in the related Prospectus under the headings "Certain Legal Aspects of the Mortgage Loans", "Material Federal Income Tax Consequences" (insofar as they relate specifically to counsel for the Underwriterpurchase, ownership and disposition of the related Offered Certificates) and "ERISA Considerations" (insofar as they relate specifically to the purchase, ownership and disposition of such Offered Certificates), to the effect set forth extent that they constitute matters of law or legal conclusions, provide a fair summary of such law or conclusions;
(viii) assuming compliance with all provisions of the related Pooling and Servicing Agreement, for federal income tax purposes, (A) if any election is made to treat the assets of the Trust Fund as a REMIC: the related Trust Fund (and any specified subgrouping therein) will qualify as a REMIC pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the "Code"), each Class of Certificates of the related Series, other than the related Residual Class or Classes, will constitute a class of "regular interests" in Exhibit A-3 hereto the related REMIC within the meaning of the Code, and each Class of such Certificates specified in the related Prospectus as a Class of Residual Certificates will constitute the "residual interest" in the related REMIC within the meaning of the Code; (B) if no such REMIC election is made: the Trust Fund will be treated as a "grantor trust"; and
(ix) assuming that some or all of the Offered Certificates of the related Series shall be rated at the time of issuance in one of the two highest rating categories by a nationally recognized statistical rating organization, each Offered Certificate so rated will be at the time of issuance, a "mortgage related security" as such term is defined in Section 3(a)(41) of the Exchange Act. Such opinion may express its reliance as to such further effect factual matters on the representations and warranties made by, and on certificates or other documents furnished by, officers of the parties to this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company. Such opinion may be qualified, insofar as counsel it concerns the enforceability of the documents referred to therein, to the Underwriter extent that such enforceability may reasonably requestbe limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). At Such opinion may be further qualified as expressing no opinion as to (x) the Closing Time, statements in the Underwriter shall have received related Prospectus under the favorable opinion, dated as heading "Certain Legal Aspects of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory Mortgage Loans" except insofar as such statements relate to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the laws of the United States, and (y) the statements in such Prospectus under the headings "ERISA Considerations" and "Material Federal Income Tax Consequences" except insofar as such statements relate to the laws of the United States. In addition, such opinion may be qualified as an opinion only on the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that America.
(ic) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ , L.L.P., counsel for the Company, shall have furnished to the Underwriter an opinion, dated the related Closing Date, 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 the State of Delaware, with corporate power to own its properties, to conduct its business as described in the related Prospectus and to enter into and perform its obligations under this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement and the Certificates of the related Series;
(ii) The Company has full power and authority to sell the related Mortgage Loans as contemplated herein and in the related Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the related Pooling and Servicing Agreement have been duly authorized, executed and delivered by the Company under the law of the State of Delaware;
(iv) The issuance and sale of the Offered Certificates have been duly authorized by the Company;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein or in the related Pooling and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained;
(vi) Neither the issuance of the Certificates of the related Series nor delivery of the related Offered Certificates, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement, nor the fulfillment of the terms of the related Certificates, the related Pooling and Servicing Agreement, this Agreement or the related Terms Agreement will conflict with or violate any term or provision of the articles of incorporation or by-laws of the Company or any statute, order or regulation applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other agreement or instrument known to such counsel to which the Company is a party or by which it is bound; and
(vii) There are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement or the related Certificates, (ii) seeking to prevent the issuance of the Certificates of the related Series or the consummation by the Company of any of the transactions contemplated by this Agreement, such Terms Agreement or such Pooling and Servicing Agreement, or (iii) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Pooling and Servicing Agreement or the related Certificates. In rendering his or her opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Company or public officials. In addition, such opinion may be qualified as an opinion only on the general corporation laws of the State of Delaware.
(d) In-house counsel for FT Mortgage Companies (or its ultimate parent) shall have furnished to the Underwriter an opinion, dated the related Closing Date, to the effect that:
(i) FT Mortgage Companies has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with corporate power to own its properties, to conduct its business as described in the related Prospectus and to enter into and perform its obligations under this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement and the Certificates of the related Series;
(ii) FT Mortgage Companies has full power and authority to sell and master service the related Mortgage Loans as contemplated herein and in the related Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the related Pooling and Servicing Agreement have been duly authorized, executed and delivered by FT Mortgage Companies under the law of the State of Kansas;
(iv) The issuance and sale of the Offered Certificates have been duly authorized by FT Mortgage Companies;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by FT Mortgage Companies of the transactions contemplated herein or in the related Pooling and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained;
(vi) Neither the issuance of the Certificates of the related Series nor delivery of the related Offered Certificates, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement, nor the fulfillment of the terms of the related Certificates, the related Pooling and Servicing Agreement, this Agreement or the related Terms Agreement will conflict with or violate any term or provision of the articles of incorporation or by-laws of FT Mortgage Companies or any statute, order or regulation applicable to FT Mortgage Companies of any court, regulatory body, administrative agency or governmental body having jurisdiction over FT Mortgage Companies and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other agreement or instrument known to such counsel to which FT Mortgage Companies is a party or by which it is bound, other than such conflicts, breaches and violations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on FT Mortgage Companies and its subsidiaries, taken as a whole, or on the issuance and sale of the Certificates or the consummation of the transactions contemplated hereby; and; and
(vii) There are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement or the related Certificates, (ii) seeking to prevent the issuance of the Certificates of the related Series or the consummation by FT Mortgage Companies of any of the transactions contemplated by this Agreement, such Terms Agreement or such Pooling and Servicing Agreement, or (iii) which might materially and adversely affect the performance by FT Mortgage Companies of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Pooling and Servicing Agreement or the related Certificates. In rendering his or her opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of FT Mortgage Companies or public officials. In addition, such opinion may be qualified as an opinion only on the laws of the State of Kansas and may assume that the applicable laws of Kansas are identical to those of Tennessee.
(e) The General Counsel for First Tennessee Bank National Association (the "Bank") (or its ultimate parent) shall have furnished to the Underwriter an opinion, dated the related Closing Date, to the effect that:
(i) The Bank is a national banking association duly chartered and validly existing under the laws of the CompanyUnited States, with the requisite power to own its properties, to conduct its business as described in form the related Prospectus and substance satisfactory to counsel enter into and perform its obligations under the Pooling and Servicing Agreement of the related Series;
(ii) The Bank has full power and authority to sell the related Mortgage Loans as contemplated in the related Pooling and Servicing Agreement;
(iii) The related Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Bank under the laws of the United States;
(iv) No consent, approval, authorization or order of any court or governmental agency or body is required for the Underwriterconsummation by the Bank of the transactions contemplated in the related Pooling and Servicing Agreement, dated except such Date approvals as have been obtained;
(vi) Neither the consummation of Deliveryany of the transactions contemplated in the related Pooling and Servicing Agreement, relating to nor the Option Securities to be purchased on such Date fulfillment of Delivery the terms of the related Pooling and otherwise to the same effect as the opinions required by Section 6(b) hereof.Servicing Agree
Appears in 1 contract
Sources: Underwriting Agreement (First Horizon Asset Securities Inc)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Company, PNMAC and the Selling Stockholders contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company Company, PNMAC and the Selling Stockholders made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Company, PNMAC and the Selling Stockholders of its their obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to you.
(c) The Selling Stockholders shall have requested and caused [ ], counsel for the Underwriter. In giving such opinion such counsel may relySelling Stockholders, as to all matters governed by have furnished to the laws of jurisdictions other than Underwriter their opinions, dated the law of the State of New York Closing Date and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory addressed to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, in form and substance reasonably satisfactory to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. you.
(d) The Underwriter shall have received from [ ], counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company and PNMAC shall have furnished to you a certificate of the President or a Vice President on behalf of the Company and PNMAC, signed by each of the chief respective Chairman of the Board or the President and the principal financial or chief accounting officer of each of the CompanyCompany and PNMAC, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company and PNMAC in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and each of the Company has and PNMAC have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s or are pending or are contemplated by PNMAC’s knowledge, threatened; and
(iii) since the Commission. At the time date of the execution most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no Material Adverse Effect except as set forth in or contemplated in the Underwriter Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have received from Ernst & Young LLP furnished or caused to be furnished to you at the Closing Date certificates of (i) officers of the Selling Stockholder, if the Selling Stockholder is an entity, or (ii) the Selling Stockholder, if the Selling Stockholder is a letternatural person, dated reasonably satisfactory to you as to the accuracy of the representations and warranties of the Selling Stockholder herein at and as of such dateClosing Date, as of to the performance by the Selling Stockholder of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as you may reasonably request.
(g) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to you, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are independent accountants within the Underwriter containing statements and information meaning of the type ordinarily included Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating in accountants' "comfort letters" to effect that:
(i) in their opinion the Underwriter with respect to the audited financial statements and certain financial information contained statement schedules and pro forma financial statements included in the Registration Statement, the General Disclosure Package Preliminary Prospectus and the Prospectus. At Prospectus and reported on by them comply as to form with the Closing Timeapplicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company, PNMAC and their subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the Audit Committee, the Underwriter shall Compensation Committee, the Risk Management Committee and Governance and Nominating Committee of the Company, PNMAC and their subsidiaries; and inquiries of certain officials of the Company, PNMAC and their subsidiaries who have received from Ernst & Young LLP a letterresponsibility for financial and accounting matters of the Company, dated PNMAC and their subsidiaries as of Closing Timeto transactions and events subsequent to [ ], nothing came to their attention which caused them to believe that: with respect to the effect that they reaffirm the statements made in the letter furnished pursuant period subsequent to subsection (e) of this Section[ ], except that the there were any changes, at a specified date referred to shall be a date not more than three business five days prior to Closing Time. At the Closing Time date of the letter, in the long-term debt of the Company, PNMAC and each Date their subsidiaries or the capital stock of Deliverythe Company, PNMAC and their subsidiaries or decreases in the stockholders’ equity of the Company, PNMAC and their subsidiaries as compared with the amounts shown on the [ ] consolidated balance sheet included in the Registration Statement, the Preliminary Prospectus and the Prospectus, or for the period from [ ] to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net revenues or income before income taxes or in total or per share amounts of net income of the Company, PNMAC and their subsidiaries except in all instances for changes or decreases set forth in such letter, in which case may bethe letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by you;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, there shall financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company, PNMAC and their subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Company, PNMAC and their subsidiaries, excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus (the “pro forma financial statements”); carrying out certain specified procedures; inquiries of certain officials of the Company, PNMAC and their subsidiaries who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have been, since not been properly applied to the historical amounts in the compilation of such statements. References to the Prospectus in this paragraph (g) include any supplement thereto at the date hereof or since of the respective letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties or results of operations of the Company Company, PNMAC and its their subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, that, except as set forth in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner or contemplated in the Prospectus. At Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) Prior to the Closing TimeDate, the Company and PNMAC shall have furnished to you such further customary information, certificates and documents as you may reasonably request.
(j) The Securities shall have been approved listed and admitted and authorized for listing trading on the New York Stock Exchange, subject only to official notice and satisfactory evidence of issuance. The Underwriter such actions shall have received each of been provided to you.
(k) At the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option SecuritiesExecution Time, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date furnished to you a letter substantially in the form of Delivery, of the President or a Vice President Exhibit A-1 hereto from each officer and director of the Company and each of the chief financial or chief accounting officer parties listed on Exhibit A-2 addressed to you. If any of the Company confirming that the certificate delivered at the Closing Time pursuant to conditions specified in this Section 6(d) hereof remains true 6 shall not have been fulfilled when and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.provided in this Agreement, counsel for the Company, and the General Counsel or if any of the Company, opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance satisfactory to you and your counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by you. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of [ ], counsel for the Underwriter, dated such Date of Deliveryat [ ], relating to on the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Pennymac Financial Services, Inc.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company Depositor contained herein as of the time of the execution of this Agreement, date hereof and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company Depositor made in any Officers’ certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Depositor of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b:
(a) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇& ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory LLP shall have furnished to the Underwriter. In giving such opinion such counsel may relyUnderwriter opinions, as to all matters governed by dated the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of DelawareClosing Date, upon the opinions of counsel satisfactory substantially to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they effect set forth in Exhibit A.
(b) The Depositor shall have relied, furnished to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the Depositor, signed by the President, Senior Vice President or a any Vice President of the Company and of the chief financial or chief accounting officer of the CompanyPresident, dated as of the Closing TimeDate, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the The representations and warranties of the Depositor in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at in all material respects on and as of the Closing TimeDate with the same effect as if made on the Closing Date, (iii) and the Company Depositor 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 Time, and Date;
(ivii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Commission. At the time Registration Statement, as of the execution Closing Date, contains any untrue statement of this Agreementa material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, 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, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing TimeUnderwriter, to the effect that they reaffirm have performed certain specified procedures as a result of which they have determined that such information as the statements made Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the letter furnished pursuant to subsection Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s CSMC Pass-Through Certificates, Series 2007-NC1 OSI, Class 1-A, Class 2-A-1, Class 2-A-2 and Class R Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and Fitch, Inc. (“Fitch”). The Class M-1 Certificates shall have been rated “AA+” by S&P and Fitch. The Class M-2 Certificates shall have been rated “AA” by S&P and “AA+” by Fitch. The Class M-3 Certificates shall have been rated “AA-” by S&P and Fitch. The Class M-4 Certificates shall have been rated “A+” by S&P and Fitch. The Class M-5 Certificates shall have been rated “A” by S&P and Fitch. The Class M-6 Certificates shall have been rated “A-” by S&P and rated “A” by Fitch. The Class M-7 Certificates shall have been rated “BBB+” by S&P and rated “A-” by Fitch. The Class M-8 Certificates shall have been rated “BBB” by S&P and rated “BBB+” by Fitch. The Class M-9 Certificates shall have been rated “BBB-” by S&P and rated “BBB” by Fitch.
(e) The Underwriter shall have received the opinion of this Sectionthe Counsel to the Trustee, except that substantially to the specified date referred to effect set forth in Exhibit B.
(f) The Underwriter shall be a date not more than three business days prior to Closing Time. At have received the opinion of the Counsel, dated as of the Closing Time Date, to the Servicer in form and each Date of Delivery, as substance satisfactory to the case may beUnderwriter.
(g) Subsequent to the date hereof, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition, financial business or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and Depositor, which the Underwriter concludes in its subsidiaries taken as a whole, whether or not arising in judgment materially impairs the ordinary course of business, that, in the reasonable judgment investment quality of the Underwriter, makes Certificates so as to make it impracticable impractical or inadvisable to market proceed with the Securities on public offering or the terms and in delivery of the manner Certificates as contemplated in by the Prospectus. At the Closing Time, the Securities .
(h) The Depositor shall have been approved for listing on furnished to the New York Stock Exchange, subject only Underwriter any other opinion of counsel delivered to official notice the Rating Agencies in connection with the rating of issuance. the Certificates.
(i) The Underwriter shall have received each an indemnification letter from the Servicer for the information provided by the Servicer for inclusion in the Prospectus Supplement. If any of the signed Lock-Up Agreements referred to conditions specified in this Section 5(j) hereof6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and each such Lock-Up certificates mentioned above or elsewhere in this Agreement shall not be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, material respects reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter, dated . Notice of such Date of Delivery, relating cancellation shall be given to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required Depositor in writing, or by Section 6(b) hereoftelephone or telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (CSMC Asset-Backed Trust 2007-Nc1)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities hereunder shall be subject subject, in its discretion, to the accuracy of the condition that all representations and warranties on the part and other statements of the Company contained Issuers and the Guarantors herein are, at and as of the time of date hereof and the execution of this Agreement, the Closing Time and each Date of Delivery, as true and correct, the case may be, to condition that the accuracy of Issuers and the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its Guarantors shall have performed all their obligations hereunder theretofore to be performed, and to the following additional conditions: :
(a) The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the CompanyUnderwriter, such opinion or opinions, dated the Time of Delivery and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the issuance of the Guarantees and the Indenture and other related matters as the Underwriter may reasonably require, and the Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Issuers, shall have furnished to you their (i) written opinion, dated the Time of Delivery, substantially in the form of Annex C hereto and (ii) negative assurance letter, dated the Time of Delivery, in form and substance reasonably satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and you;
(iic) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special regulatory counsel for to the UnderwriterIssuers, shall have furnished to you their written opinion, dated the Time of Delivery, substantially in the form of Annex D hereto;
(d) The Issuers shall have furnished to you a certificate, dated the Time of Delivery, in form and substance reasonably satisfactory to you, (i) with respect to certain financial information of TWC and BHN incorporated by reference in the Underwriter. In giving Time of Sale Information and the Prospectus and (ii) certifying that nothing has come to the attention of the Issuers that would cause the Issuers to believe that the financial information of BHN and TWC included in the Time of Sale Information and the Prospectus has not been prepared in accordance with GAAP in all material respects;
(e) On the date of the Time of Sale Information and also at the Time of Delivery, KPMG LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(i) None of the Issuers, the Guarantors or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Information and 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 court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus, and (ii) since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus (for clarification purposes, this excludes any amendment or supplement to the each of the Registration Statement, the Time of Sale Information and the Prospectus on or after the date of this Agreement) there shall not have been any change in the capital stock, limited liability company interests, partnership interests or long-term debt of the Issuers or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ or members’ equity, or results of operations of the Issuers and their respective subsidiaries, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus, the effect of which, in any such opinion such counsel may relycase described in clause (i) or (ii), is in the judgment of the Underwriter so material and adverse as to all matters governed make it impracticable or inadvisable to proceed with the offering or the sale or delivery of the Securities on the terms and in the manner contemplated in this Agreement and in the Time of Sale Information and the Prospectus;
(g) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the laws Issuers, the Guarantors or any of jurisdictions their respective subsidiaries by any “nationally recognized statistical rating organization” registered under Section 15E of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Issuers, the Guarantors or any of their respective subsidiaries (other than the law an announcement with positive implications of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. a possible upgrading);
(h) The Underwriter shall have received a certificate counterpart of the President Officers’ Certificate that shall have been executed and delivered by a duly authorized officer(s) of each of the Issuers and the Guarantors;
(i) The Securities shall be eligible for clearance and settlement through DTC;
(j) At the Time of Delivery, the Underwriter shall have received a written certificate executed by the Chairman of the Board, Chief Executive Officer or a Vice President of the Company Issuers and the Chief Financial Officer or Chief Accounting Officer of the chief financial or chief accounting officer of the CompanyIssuers, dated as of the Closing TimeTime of Delivery, certifying to the matters set forth in subsections (f) and (g) of this Section 8 and as to such other matters as you may reasonably request, and further to the effect that that:
(i) there has been no Material Adverse Change since the representations, warranties and covenants of the Issuers and the Guarantors set forth herein were true and correct as of the date hereof, (ii) the representations hereof and warranties in Section 1 hereof are true and correct as of the Time of Delivery with the same force and effect as though expressly made at on and as of the Closing TimeTime of Delivery;
(ii) the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of the Registration Statement is in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act is pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus has been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information have been complied with; and
(iii) each of the Company has Issuers and the Guarantors have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, Time of Delivery.
(k) The Registration Statement shall have become effective under the Securities Act and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued shall be in effect, and no proceedings proceeding for that purpose have been instituted such purpose, pursuant to Rule 401(g)(2) or are pursuant to Section 8A under the Securities Act shall be pending before or are contemplated threatened by the Commission. At ; the time Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the execution Underwriter; and
(l) On or before the Time of this AgreementDelivery, the Underwriter and counsel for the Underwriter shall have received from Ernst & Young LLP a lettersuch information, dated documents and opinions as they may reasonably require for the purposes of such date, in form enabling them to pass upon the issuance and substance satisfactory to the Underwriter containing statements and information sale of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated Securities as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwisecontemplated herein, or in order to evidence the earnings, business, prospects, properties or results accuracy of operations any of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties warranties, or the satisfaction of any of the Company contained conditions or agreements, herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofcontained.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused L▇▇▇▇▇ & W▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, in form to have furnished to the Underwriter their opinion and substance satisfactory negative assurance letter, dated the Closing Date and addressed to counsel for the Underwriter, in a form reasonably acceptable to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and Underwriter.
(iic) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs The Chief Financial Officer of the Company and its subsidiaries, in form and substance satisfactory shall have delivered to counsel for the Underwriter, on each of the date hereof and on the Closing Date, a certificate in a form acceptable to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter.
(d) The Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇from D▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇W▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form such opinion and substance reasonably satisfactory negative assurance letter, dated the Closing Date and addressed to the Underwriter. In giving such opinion , with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may relyreasonably request for the purpose of enabling them to pass upon such matters.
(e) The Selling Stockholder shall have requested and caused Walkers (Cayman) LLP, as counsel for the Selling Stockholder, to all matters governed by have furnished to the laws of jurisdictions other than Underwriter their opinion dated the law of the State of New York Closing Date and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory addressed to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, in a form reasonably acceptable to the extent they deem proper, upon certificates of officers of the Underwriter.
(f) The Company and its subsidiaries and certificates of public officials. The Underwriter shall have received furnished to the Underwriter a certificate of the President or a Vice President of Company, signed by the Company Chief Executive Officer and of the chief financial or chief accounting officer Chief Financial Officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of this Agreementany amendment or supplement thereto), there has been no material adverse change in the Underwriter condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(g) The Company shall have received from Ernst requested and caused Deloitte & Young Touche LLP a letterto have furnished to the Underwriter, at the Execution Time and at the Closing Date, letters, dated respectively as of such datethe Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter Underwriter, containing statements and information of the type ordinarily included in accountants' "accountants “comfort letters" ” to underwriters.
(h) Subsequent to the Underwriter with respect to the financial statements and certain financial information contained in the Registration StatementExecution Time or, if earlier, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the General Disclosure PackageProspectus (exclusive of supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties 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, thatthe effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Disclosure Package and in the manner contemplated in the Prospectus. At Prospectus (exclusive of any amendment or supplement thereto).
(i) Prior to the Closing TimeDate, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and the Selling Stockholder shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request. If any of the chief financial conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or chief accounting officer if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company confirming that and the certificate Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, LLP, counsel for Company. The favorable opinions of the Underwriter, at 1▇▇▇ ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇ L.L.P.▇▇▇, counsel for ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Opendoor Technologies Inc.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Underwriter shall have received from Deloitte & Touche LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and at the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Time Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Company or proceedings therefor initiated or threatened the Underwriter, shall have been contemplated by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with .
(c) Subsequent to the reasonable satisfaction execution and delivery of counsel to the Underwriter. A prospectus containing the Rule 430B Information this Agreement, there shall not have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received occurred (i) any change, or any development involving a prospective change, in or affecting particularly the favorable opinion, dated as business or properties of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the CompanyCompany which, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, to materially impairs the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to investment quality of the Underwriter may reasonably request, and Offered Certificates; (ii) any downgrading in the favorable opinion, dated as ratings of the Closing TimeMortgage Certificates by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its ratings of the Mortgage Certificates (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the General Counsel New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the CompanyUnited States is involved, with responsibility for the legal affairs any declaration of the Company and its subsidiarieswar by Congress or any other substantial national or international calamity or emergency if, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as proceed with completion of the Closing Time, sale of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel and payment for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of the President or a Vice President an executive officer of the Company and of the chief financial or chief accounting in which such officer of the Company, dated as of the Closing Timeshall state that, to the effect that best of such officer’s knowledge after reasonable inspection, (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company contained in Section 1 hereof the Basic Documents are true and correct with the same force and effect as though expressly if made at and as of on the Closing Time, Date and (iiiii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date.
(ive) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the The Underwriter shall have received from Ernst & Young LLP a letteran opinion of reasonably acceptable counsel to the Trustee, dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of counsel for the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. .
(f) The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, special counsel for to the Company, and dated the General Counsel of the CompanyClosing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Underwriter, a letter addressed to the Underwriter dated the Closing Date with respect to the Final Prospectus, substantially to the effect that no facts have come to such counsel’s attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, 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, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(i) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(j) At the Closing Date, the Certificates and the Trust Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(k) The Underwriter shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(l) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Trust Agreement, the Mortgage Certificate Purchase Agreement, the Certificates, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(m) The Underwriter shall have received a certificate (upon which Hunton & ▇▇▇▇▇▇▇▇ LLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated such the Closing Date of Deliveryan officer of the Trustee in which such officer shall state that, relating to the Option Securities best of such officer’s knowledge after reasonable investigation: (i) the Trustee is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Trustee (the “Trustee Disclosure”) includes (a) the Trustee’s correct name and form of organization and (b) a discussion of the Trustee’s experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Trustee Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The Company will provide or cause to be purchased on such Date of Delivery and otherwise provided to the same effect Underwriter such conformed copies of such opinions, certificates, letters and documents as the opinions Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6(b) hereof7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding 2008-R3 Trust)
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Final Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted or threatened.
(b) All corporate proceedings and other legal matters incident to the 1933 Act or proceedings therefor initiated or threatened by authorization, form and validity of each of each of the CommissionTransaction Documents, the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriter, and any request on the part of the Commission for additional information from the Company shall have been complied with furnished to the reasonable satisfaction of such counsel all documents and information that they may reasonably request to the Underwriter. A prospectus containing the Rule 430B Information enable them to pass upon such matters.
(c) The Company shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, to the effect set forth in Annex A-1.
(d) ▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant General Counsel of the Company, shall have furnished to the Representative such counsel's written opinion, as counsel to the Company, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative, to the effect that:
(i) except to the extent set forth in the Disclosure Package and the Final Prospectus, and except for directors' shares which are not material in amount, all the outstanding shares of capital stock of each Subsidiary are owned by the Company directly or indirectly through one or more wholly owned Subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party; and
(ii) to the best of such counsel's knowledge, except as set forth in the Disclosure Package and the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding. In rendering such opinion, such counsel may rely as to matters involving the application of laws of any jurisdiction other than the United States or the corporate laws of the State of Delaware, to the extent he deems proper and specifies in such opinion, upon the opinion of other counsel of good standing whom he believes to be reliable and who are satisfactory to counsel for the Underwriter. Such opinion may also contain customary qualifications and limitations. References to the Disclosure Package and the Final Prospectus in this paragraph (d) include any amendments or supplements thereto at the Closing Date.
(e) ▇▇▇▇▇▇, Del Castillo, Bacorro, ▇▇▇▇▇▇, Calma & ▇▇▇▇▇▇▇▇▇ Law Offices, Philippines counsel for the Company, shall have furnished to the Representative such counsel's written opinion, as counsel to the Company, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative, to the effect that:
(i) each of the Subsidiaries incorporated or organized under the laws of the Philippines (the "Philippines Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Philippines, with full corporate power and authority to own or hold its properties and to conduct the businesses in which it is engaged; and
(ii) all the outstanding shares of capital stock of each Philippines Subsidiary have been duly authorized and validly issued, are fully paid and non assessable and, except such shares of each Philippines Subsidiary owned by directors thereof, which shares in each case do not exceed 0.1% of the outstanding shares of such Subsidiary, are owned by the Company directly or indirectly through one or more wholly owned Subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper on certificates of responsible officers of the Company and public officials. Such opinion may also contain customary qualifications and limitations.
(f) ▇▇▇ & ▇▇▇▇▇, Korean Counsel for the Company, shall have furnished to the Representative such counsel's written opinion, as counsel to the Company, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative, to the effect that:
(i) such of the Subsidiaries incorporated or organized under the laws of the Republic of Korea (the "Korean Subsidiaries") has been duly incorporated and is validly existing as corporations under the laws of the Republic of Korea, with full corporate power and authority to own or hold its properties and to conduct its businesses in accordance with its Articles of Incorporation; and
(ii) all the outstanding shares of capital stock of each Korean Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable, and, in the case of each Korean Subsidiary, are owned by the Company directly or indirectly through one or more wholly owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of each Korean Subsidiary and the Company and public officials. Such opinion may also contain customary qualifications and limitations.
(g) The Representative shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, a letter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as Underwriter (i) confirming that they are the independent certified public accountants with respect to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries Subsidiaries within the meaning of the Act and certificates the Exchange Act and (ii) stating the conclusions and findings of public officials. such firm with respect to financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the form of which is set forth in Annex B hereto.
(i) The Underwriter Company shall have received furnished to the Representative a certificate of the President or a Vice President Company, signed by the Chairman of the Company Board or the President and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any amendment or supplement thereto and this Agreement and that(1):
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date; ---------- (iv1) This certificate or a separate certificate will cover compliance with debt covenants in Company's indentures.
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company's knowledge, threatened; and
(iii) since the time date of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing most recent financial statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At Final Prospectus (exclusive of any supplement thereto), there has been no development which could reasonably be expected to have a material adverse effect on the Closing Timecondition (financial or otherwise), results of operations, business or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(j) Subsequent to the Execution Time or, if earlier, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageFinal Prospectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, properties or results of operations operations, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the UnderwriterRepresentative, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(k) 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 the Closing Date, prevent the issuance or sale of the Securities; 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 the Closing Date which would prevent the issuance or sale of the Securities.
(l) Subsequent to the Execution Time, there shall not have been any downgrading in the manner contemplated rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) and no such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading in its rating of any of the Prospectus. At Company's debt securities).
(m) The Indenture shall have been duly executed and delivered by the Closing TimeCompany and the Trustee, and the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, duly executed and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished delivered by the Company or any subsidiary and duly authenticated by the Trustee.
(n) The concurrent offering of senior notes described in the Final Prospectus shall have closed.
(o) Each of the Company hereunder shall be true Chief Executive Officer, ▇▇▇▇ ▇. ▇▇▇ and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.shall have furnished a letter, counsel for the Company, and the General Counsel dated as of the Companydate hereof, substantially in the form of Exhibit A hereto.
(p) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance satisfactory to the Representative and counsel for the Underwriter, dated this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such Date of Delivery, relating cancellation shall be given to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required Company in writing or by Section 6(b) hereoftelephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Final Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Timecaused Skadden, the Underwriter shall have received (i) the favorable opinionArps, dated as of the Closing TimeSlate, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel have furnished to the Underwriter may reasonably requesttheir opinion and negative assurance letter, and (ii) the favorable opinion, each dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company Date and its subsidiaries, in form and substance satisfactory addressed to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving rendering such opinion opinion, such counsel may rely, rely (A) as to all matters governed by involving the application of laws of jurisdictions any jurisdiction other than the law of the State of New York and or the federal law Federal laws of the United States States, to the extent they deem proper and the General Corporation Law of the State of Delawarespecified in such opinion, upon the opinions opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter. Such counsel may also state that, insofar Underwriter and (B) as such opinion involves factual matters, they have reliedto matters of fact, to the extent they deem proper, upon on certificates of responsible officers of the Company and its subsidiaries public officials.
(c) The Company shall have requested and caused DLA Piper LLP (US), counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Maryland or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. .
(d) The Underwriter shall have received from ▇▇▇▇▇ Day, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriter a certificate of the President or a Vice President Company, signed by the Chairman of the Company Board or the President and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of this Agreementany supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Underwriter Operating Partnership and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have received from requested and caused Ernst & Young LLP a letterto have furnished to the Underwriter, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to the Underwriter), dated as of such datethe Execution Time and as of the Closing Date, respectively, in form and substance satisfactory to the Underwriter Underwriter, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to the Underwriter underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus. At .
(g) Subsequent to the Closing TimeExecution Time or, if earlier, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageFinal Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties 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, thatexcept as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the manner contemplated rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Prospectus. At Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing TimeDate, the Securities Company shall have been approved for listing on furnished to the New York Stock ExchangeUnderwriter such further information, subject only to official notice of issuance. certificates and documents as the Underwriter may reasonably request.
(j) The Underwriter Company shall have received each furnished to the Underwriter a certificate of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief principal financial or chief accounting officer of the Company confirming Company, at the Execution Time and at the Closing Date, to the effect that the signer of such certificate is familiar with the accounting, operations and records systems of the Company, certifying that certain statements in identified pages of the Company’s proxy statement are, to the knowledge of the signer, accurate in all material respects and such other matters as the Underwriter shall reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel ▇▇▇▇▇ Day, counsel for Company. The favorable opinions of the Underwriter, at ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ L.L.P.▇▇▇▇▇, counsel for on the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Underwriter shall have received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and at the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Time Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Company or proceedings therefor initiated or threatened the Underwriter, shall have been contemplated by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with .
(c) Subsequent to the reasonable satisfaction execution and delivery of counsel to the Underwriter. A prospectus containing the Rule 430B Information this Agreement, there shall not have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received occurred (i) any change, or any development involving a prospective change, in or affecting particularly the favorable opinion, dated as business or properties of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for Company or the CompanyServicer which, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, to materially impairs the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to investment quality of the Underwriter may reasonably request, and Offered Certificates; (ii) any downgrading in the favorable opinion, dated as rating of the Closing TimeServicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the General Counsel New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the CompanyUnited States is involved, with responsibility for the legal affairs any declaration of the Company and its subsidiarieswar by Congress or any other substantial national or international calamity or emergency if, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as proceed with completion of the Closing Time, sale of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel and payment for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of the President or a Vice President an executive officer of the Company and of the chief financial or chief accounting in which such officer of the Company, dated as of the Closing Timeshall state that, to the effect that best of such officer's knowledge after reasonable inspection, (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company contained in Section 1 hereof the Basic Documents are true and correct with the same force and effect as though expressly if made at and as of on the Closing Time, Date and (iiiii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing TimeDate.
(e) The Underwriter shall have received a certificate of an executive officer of BANA, dated as of the Closing Date, to the effect that, to the ▇▇▇▇ of such officer's knowledge, (i) the representations and warranties contained in the Mortgage Loan Purchase Agreement are true and correct with the same force and effect as though made on and as of the Closing Date and (ivii) no stop such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to BANA or the Mortgage Loans originated or acquired by BANA, contains any untrue statement of a material fact or omits to state a material fact necessary in order suspending to make the effectiveness statements therein, in light of the Registration Statement circumstances under which they were made, not misleading.
(f) The Underwriter shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special counsel to the Compa▇▇, ▇▇▇▇▇ the Clos▇▇▇ Dat▇, ▇n form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or any notice objecting accompanied by reliance letters addressed to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter.
(h) The Underwriter shall have received from Ernst Cadwalader, Wickersham & Young LLP Taft LLP, special counsel for the Underwriter, a letterl▇▇▇▇▇ ▇▇▇▇d the ▇losing Date with respect to the Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, 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, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(i) The Underwriter shall have received an opinion of reasonably acceptable counsel to the Trustee and the Securities Administrator, dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of counsel for the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At Underwriter.
(j) On or before the Closing TimeDate, the Underwriter shall have received from Ernst & Young LLP a letter, dated as evidence satisfactory to it that each class of Closing Time, to Offered Certificates has been given the effect that they reaffirm the statements made in the letter furnished pursuant to subsection ratings set forth on Schedule I hereto.
(ek) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time Date, the Certificates and each Date of Delivery, as the case may be, there Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriter shall not have been, since discovered and disclosed to the date hereof Company on or since prior to the respective dates as of which information is given in Closing Date that the Registration Statement or the Final Prospectus and the General Disclosure Package, any material adverse change, or any development involving amendment or supplement thereto contains an untrue statement of a prospective material adverse changefact or omits to state a fact which, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results opinion of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of counsel to the Underwriter, makes it impracticable is material and is required to market be stated therein or is necessary to make the Securities on statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the terms authorization, form and in the manner contemplated in the Prospectus. At the Closing Timevalidity of this Agreement, the Securities Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, and the Company shall have been approved for listing on the New York Stock Exchange, subject only furnished to official notice of issuancesuch counsel all documents and information that they may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Underwriter shall have received each such conformed copies of such opinions, certificates, letters and documents as the signed Lock-Up Agreements referred to Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in Section 5(j) hereof, and each such Lock-Up this Agreement shall be deemed to be in full force and effect at compliance with the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) provisions hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, only if they are in form and substance reasonably satisfactory to counsel for the Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, dated such Date of Delivery, relating this Agreement may be terminated by the Underwriter by notice to the Option Securities to be purchased on such Date of Delivery and otherwise Company at any time at or prior to the same effect Closing Date, and such termination shall be without liability of any party to any other party except as the opinions required by provided in Section 6(b) hereof7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Mortgage Securities Inc)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions: The :
(a) If the Registration Statement has not become effective and at prior to the Closing Time no stop order suspending Execution Time, unless the effectiveness of Underwriter 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 on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any notice objecting supplement thereto, is required pursuant to its use shall have been issued under Rule 424(b), the 1933 Act or proceedings therefor initiated or threatened by the CommissionFinal Prospectus, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been such supplement, will be filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information ); and no stop order suspending the effectiveness of the Registration Statement shall have been filed issued and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter no proceedings for that purpose shall have received been instituted or threatened.
(ib) the favorable opinion, dated as of the Closing Time, of The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.▇▇, LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel have furnished to the Underwriter may reasonably request, their opinion or opinions and (ii) the favorable opinionletter, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company Date and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel addressed to the Underwriter may reasonably request. At substantially in the Closing Time, the form of Exhibit A to this agreement.
(c) The Underwriter shall have received the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form such opinion and substance reasonably satisfactory letter, dated the Closing Date and addressed to the Underwriter. In giving such opinion such counsel may rely, as with respect to all matters governed by the laws of jurisdictions other than the law sale of the State of New York Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the federal law of the United States Underwriter may reasonably require, and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter the Selling Stockholder shall have received furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate of the President or a Vice President of Company, signed by both the Company Company’s general counsel and of either the chief financial officer or chief principal accounting officer of the Companyofficer, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct on and as of the Closing Date with the same force and effect as though expressly if made at on and as of the Closing Time, (iii) Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Timeor, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection Company’s knowledge, threatened; and
(eiii) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof of the most recent financial statements included or since the respective dates as of which information is given incorporated by reference in the Final Prospectus and the General Disclosure Package(exclusive of any supplement thereto), any there has been no material adverse change, or any development involving a prospective material adverse change, change in the condition, financial or otherwise, or in the earnings, business, prospects, properties business or results of operations of the Company and its subsidiaries taken as a wholeoperations, whether or not arising from transactions in the ordinary course of business, thatof the Company and its subsidiaries, considered as one entity, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) [intentionally omitted]
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto), any change, or any development, in or affecting the condition (financial or otherwise), earnings, business or operations of the Company and its subsidiaries, considered as one entity, whether or not arising from transactions in the ordinary course of business, the effect of which, in any case referred to above, is, in the reasonable judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof) and in the manner contemplated in Final Prospectus (exclusive of any supplement thereto).
(g) The Selling Stockholder shall have furnished to the Prospectus. At Underwriter a certificate of the Selling Stockholder signed by an authorized representative of the Selling Stockholder, dated the Closing TimeDate, to the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements Selling Stockholder in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be this Agreement are true and correct on and as of each the Closing Date with the same force and effect as if made on and as of Delivery and, the Closing Date and the Selling Stockholder has complied with all the agreements and satisfied all the conditions to be performed or satisfied by the Selling Stockholder under this Agreement at or prior to the relevant Date of DeliveryClosing Date;
(h) Prior to the Closing Date, the Underwriter Company shall have received: Officers' Certificate. A certificatefurnished to the Underwriter such further information, dated such Date certificates and documents as the Underwriter may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of Delivery, any of the President Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a Vice President possible change in any such rating that does not indicate the direction of the Company and possible change. If any of the chief financial conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or chief accounting officer if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancelation shall be given to the Company confirming that the certificate in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Deliveryat ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, relating to ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained and the Trust set forth herein as of the time Closing Date, and if applicable, as of the execution of this Agreement, the Option Closing Time and each Date of DeliveryDate, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereofOfferors' directors and officers, to the performance by the Company and the Trust of its their obligations hereunder hereunder, and to the following additional conditions: , except to the extent expressly waived in writing by the Underwriter:
(a) The Registration Statement has become and all post-effective and amendments thereto shall have been declared effective by the Commission no later than 5:30 p.m. Eastern Time, on the date of this Agreement, or such later time as shall have been consented to by the Underwriter, but in any event not later than 5:30 p.m., Eastern Time, on the third full business day following the date hereof; if the Offerors omitted information from the Registration Statement at the Closing Time time it became effective in reliance on Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in compliance with Rule 424(b) and Rule 430A under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use amendment or supplement thereto shall have been issued under issued; no proceeding for the 1933 Act or proceedings therefor issuance of such an order shall have been initiated or shall be pending or, to the knowledge of the Offerors or the Underwriter, threatened or contemplated by the Commission, ; and any request on the part of the Commission for additional information from (to be included in the Company Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Underwriter and complied with to the reasonable satisfaction of counsel to Underwriter's satisfaction.
(b) The Preferred Securities, the Underwriter. A prospectus containing Guarantee, and the Rule 430B Information Subordinated Debentures shall have been filed with qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing Blue Sky Laws of such information jurisdictions as shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, reasonably specified by the Underwriter and the offering contemplated by this Agreement shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed been cleared by the laws of jurisdictions other than NASD.
(c) Since the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, Registration Statement:
(i) There shall not have been any material adverse change, or any development involving a prospective material adverse change, in the conditionability of the Company or any Subsidiary to conduct their respective business (whether by reason of any court, financial legislative, other governmental action, order, decree, or otherwise), or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.general
Appears in 1 contract
Sources: Underwriting Agreement (American Bancshares Inc \Fl\)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The :
(a) If the Registration Statement has not become effective and at prior to the Closing Time no stop order suspending Execution Time, unless the effectiveness of Underwriter 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 on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any notice objecting supplement thereto, is required pursuant to its use shall have been issued under Rule 424(b), the 1933 Act or proceedings therefor initiated or threatened by the CommissionFinal Prospectus, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information such supplement, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed ); and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Underwriter the opinion of Good▇▇▇, ▇▇octer & Hoar ▇▇▇, counsel for the Company, dated the Closing Date, 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 the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction listed in a schedule to such counsel's opinion (which schedule shall list all jurisdictions in which the Company has represented to such counsel that the Company conducts material business or owns or leases material property);
(ii) the Securities conform in all material respects to the description thereof contained in the Final Prospectus; the certificates for the Securities are in valid and sufficient form;
(iii) 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, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(iv) the 10-3/4% Notes Supplemental Indenture has been duly and validly authorized by all necessary action on the part of the Company and the guarantors of the 10-3/4% Notes, has been duly executed and delivered by or on behalf of the Company and such guarantors and constitutes the legally valid and binding obligation of the Company and such guarantors, enforceable against each of them in accordance with its terms (except as such enforcement may be subject to or limited by bankruptcy, insolvency and general principles of equity);
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be described in the Registration State ment which is not so described in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the descriptions of laws, regulations and rules as set forth under the captions "Business--Environmental Regulations" and "Certain United States Federal Income Tax Consequences", and the descriptions of legal and governmental proceedings under the headings "Summary--Recent Industrial Accident" and Business--Legal Proceedings" have been reviewed by such counsel and are accurate summaries in all material respects of such information;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, order or decree, license, authorization or validation of, or filing with the Commission or any other United States or Massachusetts governmental authority is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriter in the manner contemplated in this Agreement and in the Final Prospectus;
(ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will (A) conflict with or result in a violation of any of the provisions of the certificate of incorporation or by-laws of the Company, (B) conflict with or violate in any material respect any law, rule or regulation of the United States of America or the Commonwealth of Massachusetts (other than state securities or blue sky laws or state laws or regulations relating to broker-dealer registration that may be applicable, as to which such counsel need express no opinion), or any order, judgment or decree of any court or other governmental authority known to such counsel that is applicable to Company or any of its subsidiaries or by which any property or asset of Company or any of its subsidiaries is or may be bound, or (C) result in a breach of any of the material terms or provisions of, or constitute a default (with or without due notice and/or lapse of time) under, any document filed with or incorporated by reference in any report filed by the Company under the Exchange Act; and
(xi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus 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 has been issued, no proceedings for that purpose have been instituted or are pending or are contemplated by threatened; and the Commission. At Registration Statement and the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to Final Prospectus (other than the financial statements and certain supporting schedules other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder. In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriter at which the contents of the Registration Statement and the Final Prospectus were discussed and, on the basis of the foregoing, no facts have come to such counsel's attention hat causes it to believe that, on the Effective Date or at the Execution Time, the Registration Statement contains or contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Final Prospectus as of its date and on the Closing Date includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and supporting schedules other financial and statistical information contained therein, and the Statement of Eligibility on Form T-1 included as an exhibit to the Registration Statement, the General Disclosure Package and the Prospectusas to which such counsel need express no opinion). At the Closing TimeIn rendering such opinion, the Underwriter shall have received from Ernst & Young LLP a letter, dated such counsel may rely as to matters of Closing Timefact, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) extent deemed proper, on certificates of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations responsible officers of the Company and its subsidiaries taken public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. In rendering the opinion set forth in paragraph (iii) above as a whole, whether or not arising in to matters involving the ordinary course application of business, that, in the reasonable judgment laws of the UnderwriterState of New York, makes it impracticable to market such counsel may rely upon the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Timeopinion of Cravath, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred Swaine & Moor▇ ▇▇▇erred to in Section 5(j6(d) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In rendering the event opinion set forth in paragraph (iv) above, such counsel may assume that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion laws of the Option Securities, State of New York conform to the representations and warranties laws of the Commonwealth of Massachusetts.
(c) The Company contained herein and the statements in any certificates shall have furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, to the Underwriter shall have received: Officers' Certificatethe opinion of Wall▇▇▇ ▇. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇, ▇▇., ▇▇ L.L.P., counsel for the Company, and the General ▇neral Counsel of the Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Material Subsidiaries has been duly incorporated and is validly existing as a corporation in form good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and substance satisfactory authority to counsel own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of each Material Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus or on Schedule A hereto, all outstanding shares of capital stock of the Material Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the UnderwriterSecurities;
(iv) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(v) neither the execution and delivery of the Indenture, dated such Date the issue and sale of Deliverythe Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will (A) conflict with or result in a violation of any of the provisions of the certificate of incorporation or by-laws of the Company, (B) conflict with or violate in any material respect any law, rule or regulation of the United States of America or the Commonwealth of Massachusetts (other than state securities or blue sky laws or state laws or regulations relating to broker-dealer registration that may be applicable, as to which such counsel need express no opinion), or any order, judgment or decree of any court or other governmental authority known to such counsel that is applicable to Company or any of its subsidiaries or by which any property or asset of Company or any of its subsidiaries is or may be bound, or (C) result in a breach of any of the Option Securities terms or provisions of, or constitute a default (with or without due notice and/or lapse of time) under, any agreement to which the Company or any of its subsidiaries is a party or bound, except, in the case of clause (C), for such breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be purchased on described in the Registration Statement which is not so described in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the descriptions of laws, regulations and rules as set forth under the captions "Business--Environmental Regulations" and "Certain United States Federal Income Tax Consequences", and the descriptions of legal and governmental proceedings under the headings "Summary--Recent Industrial Accident" and Business--Legal Proceedings" have been reviewed by such Date counsel and are accurate summaries in all material respects of Delivery and otherwise such information;
(vii) to the same effect knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement 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 supporting schedules other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the opinions required by Section 6(b) hereof.applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the Execution Time the Regis-
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Underwriter shall have received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and at the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Time Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Company or proceedings therefor initiated or threatened the Underwriter, shall have been contemplated by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with .
(c) Subsequent to the reasonable satisfaction execution and delivery of counsel to the Underwriter. A prospectus containing the Rule 430B Information this Agreement, there shall not have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received occurred (i) the favorable opinionany change, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Companyor any development involving a prospective change, in form and substance satisfactory to counsel for or affecting particularly the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel business or properties of the Company, with responsibility for the legal affairs of Servicer or the Company and its subsidiariesMaster Servicer which, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, to materially impairs the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as investment quality of the Closing TimeOffered Certificates; (ii) any downgrading in the rating of the Servicer or the Master Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer or the Master Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPsuch rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, counsel or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, in form and substance reasonably satisfactory the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law proceed with completion of the State sale of New York and payment for the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of the President or a Vice President an executive officer of the Company and of the chief financial or chief accounting in which such officer of the Company, dated as of the Closing Timeshall state that, to the effect that best of such officer's knowledge after reasonable inspection, (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company contained in Section 1 hereof the Basic Documents are true and correct with the same force and effect as though expressly if made at and as of on the Closing Time, Date and (iiiii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date.
(ive) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the The Underwriter shall have received from Ernst & Young LLP a letteran opinion of counsel to the Trustee, dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. counsel.
(f) [Reserved]
(g) [Reserved]
(h) The Underwriter shall have received each an opinion of the signed Lock-Up Agreements referred to in Section 5(j) hereof[▇▇▇▇▇▇, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP][Cadwalader, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP][▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP], special counsel for to the CompanyCompany and BANA, and dated the General Counsel of the CompanyClosing Date, in form and substance satisfactory to the Underwriter and its counsel.
(i) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(j) The Underwriter shall have received from [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP][Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP][▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], special counsel for the Underwriter, a letter dated the Closing Date with respect to the Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, 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, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(k) The Underwriter shall have received an opinion of counsel to the Master Servicer and Securities Administrator, dated the Closing Date, in form and substance satisfactory to the Underwriter and its counsel.
(l) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(n) The Underwriter shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of Deliverya fact or omits to state a fact which, in the opinion of counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(o) All corporate proceedings and other legal matters relating to the Option Securities authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be purchased on such Date of Delivery and otherwise provided to the same effect Underwriter such conformed copies of such opinions, certificates, letters and documents as the opinions Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6(b) hereof7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding Corp)
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase accept delivery of and pay for the Securities Certificates on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the Company District contained herein as of the time date hereof and as of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy in all material respects of the statements of the Company officers and other officials of the District, the Corporation and the Trustee made in any certificates delivered by the Company to the Underwriter or other documents furnished pursuant to the provisions hereofhereof or the Certificate Documents, and to the performance by the Company District, the Corporation, and the Trustee of its their respective obligations to be performed hereunder and under the Certificate Documents at or prior to the Closing Date, and to the following additional conditions: The Registration Statement has become effective and at :
(a) At the Closing Time no stop order suspending Date, the effectiveness of Certificates, the Registration Certificate Documents and the Official Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened duly authorized, executed and delivered by the Commissionrespective parties thereto, and any request on in substantially the part of forms heretofore submitted to the Commission for additional information from the Company Underwriter with only such changes as shall have been complied with agreed to the reasonable satisfaction of counsel to by the Underwriter. A prospectus containing , and said documents shall not have been amended, modified or supplemented, except as may have been agreed to by the Rule 430B Information Underwriter, and there shall have been filed taken in connection therewith, with the Commission execution and delivery of the Certificates and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as Special Counsel, shall deem to be necessary and appropriate;
(b) The representations and warranties of the District contained in this Purchase Agreement shall be true, correct and complete in all material respects on the manner date hereof and within on the time period required by Rule 424(bClosing Date, as if made again on the Closing Date, and the Official Statement (as the same may be supplemented or amended with the written approval of the Underwriter) without reliance on Rule 424(b)(8) (or a post-effective amendment providing shall be true, correct and complete in all material respects and such information shall not contain any untrue statement of fact or omit to state any fact required to be stated therein or necessary to make the statements therein relating to the District, in light of the circumstances under which such statements were made, not misleading;
(c) Between the date hereof and the Closing Date, neither the market price nor marketability, or the ability of the Underwriter to enforce contracts for the sale of the Certificates, at the initial offering prices set forth in Exhibit A hereto and in the Official Statement, of the Certificates shall have been filed and become effective materially adversely affected, in accordance with the requirements judgment of Rule 430B). At the Closing TimeUnderwriter, by reason of any of the Underwriter shall have received following:
(1) legislation enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United States or by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) the favorable opinion, dated as by or on behalf of the Closing TimeUnited States Treasury Department or by or on behalf of the Internal Revenue Service, with the purpose or effect, directly or indirectly, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.causing inclusion in gross income for purposes of federal income taxation of the interest received by the owners of the Certificates; or
(ii) by or on behalf of the Securities and Exchange Commission, counsel for or any other governmental agency having jurisdiction over the Company, in form and substance satisfactory to counsel for the Underwritersubject matter thereof, to the effect set forth that the Certificates, or obligations of the general character of the Certificates, including any and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended;
(2) legislation enacted by the State legislature or a decision rendered by a State Court, or a ruling, order, or regulation (final or temporary) made by a State authority, which would have the effect of changing, directly or indirectly, the State tax consequences of interest on obligations of the general character of the Certificates in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and hands of the holders thereof;
(3) there shall have occurred (i) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (ii) any other calamity or crisis in the favorable opinion, dated as financial markets of the Closing TimeUnited States or elsewhere or the escalation of such calamity or crisis;
(4) a general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction;
(5) the declaration of a general banking moratorium by federal, New York or California authorities;
(6) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the General Counsel Certificates, or obligations of the Companygeneral character of the Certificates, with responsibility or securities generally, or the material increase of any such restrictions now in force;
(7) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Certificates, or the issuance, offering or sale of the Certificates, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws, as amended and then in effect;
(8) the withdrawal or downgrading or placement on credit watch of any underlying rating of the District's outstanding indebtedness by a national rating agency;
(9) any event occurring, or information becoming known which makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Official Statement 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 made therein, in light of the circumstances under which they were made, not misleading;
(10) any fact or event shall exist or have existed that, in the Underwriter’s judgment, requires or has required an amendment of or supplement to the Official Statement;
(11) any state Blue Sky or securities commission, or other governmental agency or body, shall have withheld registration, exemption or clearance of the offering of the Certificates as described herein, or issued a stop order or similar ruling relating thereto;
(12) any amendment shall have been made to the federal or State Constitution or action by any federal or State court, legislative body, regulatory body, or other authority materially adversely affecting the tax status of the District, its property, income securities (or interest thereon) or the ability of the District to budget and appropriate funds for the legal affairs Lease Payments in order to provide for the payment of the Company principal and its subsidiaries, in form interest represented by the Certificates; or
(13) the purchase of and substance satisfactory to counsel payment for the Certificates by the Underwriter, or the resale of the Certificates by the Underwriter, on the terms and conditions herein provided shall be prohibited by any applicable law, governmental authority, board or agency or commission.
(d) At or prior to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing TimeDate, the Underwriter shall have received the favorable following documents, in each case satisfactory in form and substance to the Underwriter:
(1) the Official Statement and each Certificate Document, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to by the Underwriter;
(2) an unqualified approving opinion, dated the Closing Date and addressed to the District, of Special Counsel, in substantially the form attached to the Official Statement as Appendix D, and a letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion may be relied upon by the Underwriter to the same extent as of such opinion were addressed to it;
(3) the supplemental opinion, dated the Closing TimeDate and addressed to the Underwriter, of ▇Special Counsel, substantially to the effect that (i) this Purchase Agreement and the Certificate Documents to which the District is a party have been duly authorized, executed and delivered by the District and are valid and binding agreements of the District enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights, by the application of equitable principles if equitable remedies are sought, by the exercise of judicial discretion in appropriate cases and by the limitations on legal remedies against public agencies in the State of California, (ii) the Certificates are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Trust Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended, and (iii) the statements contained in the Official Statement under the captions “INTRODUCTION,” “THE CERTIFICATES,” “SECURITY AND SOURCES OF PAYMENT FOR THE CERTIFICATES” and “TAX MATTERS” and in Appendix A thereto, insofar as such statements purport to summarize certain provisions of the Certificates, the Certificate Documents and Special Counsel’s opinion concerning certain tax matters relating to the Certificates, are accurate in all material respects;
(4) a letter of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for A Professional Law Corporation, Disclosure Counsel, dated the Closing Date and addressed to the District and the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Preliminary Official Statement and the final Official Statement, but on the basis of their participation in conferences with representatives of the District, the Underwriter and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Preliminary Official Statement as of its date, and the final Official Statement as of its date and as of the Closing Date, 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, in light of the circumstances under which they were made, not misleading (except that no opinion such counsel may rely, or belief need be expressed as to all matters governed by the laws of jurisdictions other than the law of the State of New York any financial or statistical data, or information concerning DTC and the federal law of book-entry only system contained in the United States and Preliminary Official Statement or the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received final Official Statement);
(5) a certificate of the President or Trustee dated the Closing Date, signed by a Vice President of the Company and of the chief financial or chief accounting duly authorized officer of the Company, dated as of the Closing TimeTrustee, to the effect that (i) there has been no Material Adverse Change since the date hereofTrustee is a national banking association organized and existing under and by virtue of the laws of the United States of America, having the full power and being qualified to enter into and perform its duties under the Trust Agreement and the Assignment Agreement and to execute and deliver the Certificates to the Underwriter pursuant to the Trust Agreement, (ii) when delivered to and paid for by the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of Underwriter on the Closing TimeDate, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose Certificates will have been instituted or are pending or are contemplated duly executed and delivered by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.Trustee,
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase accept delivery of and pay for the Securities Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Company Community Facilities District contained herein herein, as of the time date hereof and as of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy in all material respects of the statements of the Company officers and other officials of the Community Facilities District made in any certificates delivered by the Company to the Underwriter or other documents furnished pursuant to the provisions hereof, to the performance by the Company Community Facilities District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions: :
(a) At the Closing Date, the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) The Registration information contained in the Official Statement has become effective will, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant to Section 2(i) hereof, be true, correct and complete in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto pursuant to Section 2(i) hereof, contain 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 the light of the circumstances under which they were made, not misleading;
(c) Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the Closing Time no stop order suspending initial offering prices set forth in the effectiveness Official Statement or the ability of the Registration Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds) by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under, or from the other requirements of, the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under, or from the other requirements of, the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any notice objecting amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its use property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States; or
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction; or
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
(8) the entry of an order by a court of competent jurisdiction which order, in the reasonable opinion of the Underwriter, materially and adversely affects proposed development of property within the Community Facilities District; or
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
(10) there shall have been any material adverse change in the affairs of the Community Facilities District or County that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
(12) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued under or made to the 1933 Act effect that the issuance, offering, or proceedings therefor initiated sale of the Bonds, including all the underlying obligations as contemplated hereby or threatened by the CommissionOfficial Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) the commencement of any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission action, suit, proceeding, inquiry or investigation, at law or in the manner and within the time period required equity, before or by Rule 424(bany court, regulatory agency, public board or body described in Section 2(k).
(d) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At On the Closing TimeDate, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(i1) the favorable opinionThe Community Facilities District Documents, together with a certificate dated as of the Closing TimeDate of the Secretary of the Board to the effect that each such document is a true, correct and complete copy of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.the one duly approved by the Board;
(2) The Official Statement, counsel for duly executed by the CompanyCommunity Facilities District;
(3) The opinion of Bond Counsel, dated the Closing Date and addressed to the Community Facilities District, in substantially the form attached to the Preliminary Official Statement as Appendix C, and substance satisfactory a reliance letter from such firm, dated the Closing Date and addressed to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to that such further effect as counsel approving opinion addressed to the Community Facilities District may be relied upon by the Underwriter may reasonably request, and to the same extent as if such opinion were addressed to them;
(ii4) the favorable opinionThe supplemental opinion of Bond Counsel, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company Date and its subsidiaries, in form and substance satisfactory addressed to counsel for the Underwriter, to the effect set forth that (i) this Bond Purchase Agreement, and the District Continuing Disclosure Certificate have been duly authorized, executed and delivered by the Community Facilities District, and, in Exhibit A-3 hereto the case of the Bond Purchase Agreement, assuming such agreement constitutes a valid and binding obligation of the respective other parties thereto, constitute the legally valid and binding obligations of the Community Facilities District enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity and to such further effect as counsel the exercise of judicial discretion in appropriate cases; (ii) the Bonds are not subject to the Underwriter may reasonably request. At registration requirements of the Closing TimeSecurities Act of 1933, as amended, and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement under the captions “THE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” “TAX MATTERS,” and in [Appendices C, E, F and G,] insofar as such statements expressly summarize certain provisions of the Bonds, the Underwriter shall have received Indenture, the favorable opinionother agreements and the opinion of such firm concerning the exclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds, dated as of the Closing Time, are accurate in all material respects;
(5) The letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for a Professional Corporation, dated the Company, Closing Date and addressed to the General Counsel of the Company, in form Community Facilities District and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement, as of its date contained, or as of the Closing Date contains, any untrue statement of a material fact or omits to state a material fact required to be purchased stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no opinion or belief need be expressed as to any financial statements or other financial, statistical or engineering data or forecasts, numbers, charts, estimates, projections, assumptions, or expressions of opinion, any information about valuation, appraisals, absorption, archeological or environmental matters, or any information about The Depository Trust Company, the book-entry-only system or CUSIP numbers);
(6) A certificate, dated the Closing Date and signed by an authorized representative of the Community Facilities District, ratifying the use and distribution by the Underwriter of the Preliminary Official Statement and the Official Statement in connection with the offering and sale of the Bonds and certifying that (i) the representations and warranties of the Community Facilities District contained in Section 2 hereof are true and correct in all material respects on such and as of the Closing Date of Delivery and otherwise to with the same effect as if made on the opinions required Closing Date; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Bonds and the Community Facilities District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the Community Facilities District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Formation Documents, the Community Facilities District Documents and the Official Statement at or prior to the Closing Date;
(7) An opinion, dated the Closing Date and addressed to the Underwriter, of the office of County Counsel, to the effect that (i) the County was duly organized and is validly existing as a division of the State under the Constitution and laws of the State of California, (ii) the Board adopted the resolutions and ordinances forming the Community Facilities District, confirming the Special Tax, approving the Community Facilities District Documents and authorizing the sale and issuance of the Bonds at meetings of the Board which were held pursuant to law, (iii) to its current actual knowledge, there are no actions, suits, proceedings, inquiries, or investigations, at law or in equity, before or by Section 6(bany California court, governmental agency, public board, or body, pending (notice of which has been served on the County) hereof.or, threatened in writing against the County or the Community Facilities District, for which the County or the Community Facilities District has been served, to restrain or enjoin the issuance of the Bonds, the collection or application of the Special Tax, or the payment of principal of and interest on the Bonds, or in any way contesting the validity of the Bonds or the Community Facilities District Documents or this Bond Purchase Agreement;
(8) A certificate, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Associates (the “Special Tax Consultant”) to the effect that (i) the Special Tax, if collected in the maximum amounts permitted pursuant to the Rate and Method of Apportionment on Developed Property, less the Administrative Expense Cap, will generate in each Fiscal Year at least 110% of the debt service payable with respect to the Bonds in the Bond Year that begins in such Fiscal Year assuming that development information provided by the Developer is true and correct; (ii) all information appearing in the Official Statement for which the Special Tax Consultant is identified as being the source is true and correct as of the date of the Official Statement and as of the Closing Date; and (iii) the statements concerning the Rate and Meth
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Company Depositor contained herein as of the time of the execution of this Agreement, date hereof and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company Depositor made in any Officers’ certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Depositor of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b:
(a) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇& ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory LLP shall have furnished to the Underwriter. In giving such opinion such counsel may relyUnderwriter opinions, as to all matters governed by dated the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of DelawareClosing Date, upon the opinions of counsel satisfactory substantially to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they effect set forth in Exhibit A.
(b) The Depositor shall have relied, furnished to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the Depositor, signed by the President, Senior Vice President or a any Vice President of the Company and of the chief financial or chief accounting officer of the CompanyPresident, dated as of the Closing TimeDate, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the The representations and warranties of the Depositor in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at in all material respects on and as of the Closing TimeDate with the same effect as if made on the Closing Date, (iii) and the Company Depositor 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 Time, and Date;
(ivii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Commission. At the time Registration Statement, as of the execution Closing Date, contains any untrue statement of this Agreementa material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, 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, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing TimeUnderwriter, to the effect that they reaffirm have performed certain specified procedures as a result of which they have determined that such information as the statements made Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the letter furnished pursuant to subsection Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-3, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-3 Certificates shall have been rated “AA-“ by S&P, “AA-“ by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “A3” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa1” by Moody’s. The Class M-9 Certificates shall have been rated “BBB-” by S&P, “BBB” by Fitch, “BBB” by DBRS and “Baa2” by Moody’s. The Class M-10 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and Baa3 by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
(e) The Underwriter shall have received the opinion of this Sectionthe Counsel to the Trustee, except that substantially to the specified date referred to effect set forth in Exhibit B.
(f) The Underwriter shall be a date not more than three business days prior to Closing Time. At have received the opinion of the Counsel, dated as of the Closing Time Date, to the Servicers in form and each Date of Delivery, as substance satisfactory to the case may beUnderwriter.
(g) Subsequent to the date hereof, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition, financial business or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and Depositor, which the Underwriter concludes in its subsidiaries taken as a whole, whether or not arising in judgment materially impairs the ordinary course of business, that, in the reasonable judgment investment quality of the Underwriter, makes Certificates so as to make it impracticable impractical or inadvisable to market proceed with the Securities on public offering or the terms and in delivery of the manner Certificates as contemplated in by the Prospectus. At the Closing Time, the Securities .
(h) The Depositor shall have been approved for listing on furnished to the New York Stock Exchange, subject only Underwriter any other opinion of counsel delivered to official notice the Rating Agencies in connection with the rating of issuance. the Certificates.
(i) The Underwriter shall have received indemnification letters from each of the signed Lock-Up Agreements referred to Servicers for the information provided by each respective servicer for inclusion in the Prospectus Supplement. If any of the conditions specified in this Section 5(j) hereof6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and each such Lock-Up certificates mentioned above or elsewhere in this Agreement shall not be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, material respects reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter, dated . Notice of such Date of Delivery, relating cancellation shall be given to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required Depositor in writing, or by Section 6(b) hereoftelephone or telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2006-3)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time and each Date of Delivery, as the case may bepursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Final Prospectus, and at any supplement thereto, shall have been filed in the Closing Time manner and within the time period required by Rule 424(b) and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(binstituted or threatened.
(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the The Underwriter shall have received (i) the favorable an opinion, dated as of the Closing TimeDate, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, and of ▇▇▇▇ L.L.P.▇. ▇▇▇▇▇▇▇▇▇▇▇, counsel for Executive Vice President, General Counsel and Secretary of the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and .
(iic) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the The Underwriter shall have received the favorable opinionfrom Cravath, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Swaine & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory addressed to the Underwriter. In giving such opinion , with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. .
(d) The Underwriter shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C., special regulatory counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to health regulatory matters in connection with the offer and sale of the Securities.
(e) The Company shall have furnished to the Underwriter a certificate of the Company, signed by a President or a Vice President of the Company and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or are pending otherwise), business prospects, earnings, business or are properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by in the Commission. Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP PricewaterhouseCoopers LLP, a letter, letter dated as of such date, in form and substance satisfactory to the Underwriter Underwriter, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to the Underwriter Underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. Package.
(g) At the Closing TimeDate, the Underwriter shall have received from Ernst & Young LLP PricewaterhouseCoopers LLP, a letter, letter dated as of Closing Timesuch date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date dated referred to shall be a date not more than three business days Business Days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since Date.
(h) Subsequent to the date hereof or since of this Agreement or, if earlier, the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageFinal Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraphs (f) and (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties 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, thatexcept as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the manner contemplated rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the Prospectus. At direction of the possible change.
(j) Prior to the Closing TimeDate, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(k) The Securities shall have been approved listed and admitted and authorized for listing trading on the New York Stock Exchange, subject only to official notice and satisfactory evidence of issuance. The Underwriter such actions shall have received been provided to the Underwriter.
(l) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each member of executive management and director of the signed Lock-Up Agreements referred Company addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, this Agreement and all obligations of the Underwriter and Company, except as provided in Section 7 and except that Sections 1, 5(j) hereof), 8 and each 10 to 19 shall survive any such Lock-Up Agreement shall be termination and remain in full force and effect effect, hereunder may be canceled at, or at any time prior to, the Closing Time and each Date by the Underwriter. Notice of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof such cancellation shall be given to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished writing or by the Company telephone or any subsidiary of the Company hereunder facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for Company. The favorable opinions of the Underwriter, at ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ L.L.P.▇▇▇▇, counsel for ▇▇ ▇▇▇▇▇-▇▇▇▇, on the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received caused (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & , Weiss, Rifkind, ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the UnderwriterCompany, in form to have furnished to the Underwriter their opinion and substance reasonably satisfactory negative assurance letter, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-1, (ii) ▇▇▇▇▇▇▇ ▇. In giving such opinion such counsel may rely▇▇▇▇▇, as to all matters governed by the laws of jurisdictions other than the law Senior Vice President, Deputy General Counsel and Corporate Secretary of the State of New York Company, to have furnished to the Underwriter his opinion, dated the Closing Date and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory addressed to the Underwriter. Such , substantially to the effect set forth in Exhibit B-2, (iii) gaming counsel may also state that, insofar as such opinion involves factual matters, they have reliedto the Company in Indiana, to have furnished to the extent they deem properUnderwriter opinions, upon certificates of officers of dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-3 and (iv) gaming counsel to the Company in each jurisdiction listed on Schedule II hereto, to have furnished to the Underwriter opinions, dated the Closing Date and its subsidiaries and certificates of public officials. addressed to the Underwriter, substantially to the effect set forth in Exhibit B-4;
(c) The Underwriter shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate of the President or a Vice President Company, signed by the Chairman of the Company Board or the President and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with in all material respects (except to the same force extent already qualified by materiality, in which case such representations and effect as though expressly made at warranties are true and correct in all respects) on and as of the Closing Time, (iii) 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 Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and is outstanding and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no material change or any development involving a prospective change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriter, at the Execution Time and at the Closing Date, a “comfort letter” and a bring-down “comfort letter”, dated, respectively, as of the Execution Time and as of the Closing Date, each addressed to the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, and in form and substance satisfactory to the Underwriter containing statements and information confirming that they are independent accountants within the meaning of the type ordinarily included in accountants' "comfort letters" to Act and the Underwriter Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and confirming certain matters with respect to the audited and unaudited financial statements and certain other financial and accounting information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At , including any amendment or supplement thereto as of the Closing Timedate of the applicable letter.
(f) Subsequent to the Execution Time or, if earlier, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise, or in the earnings), business, prospects, properties or results of operations or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the manner contemplated rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the Prospectus. At direction of the Closing Time, the possible change.
(i) The Securities shall have been approved listed and admitted and authorized for listing trading on the New York Stock ExchangeNasdaq Global Select Market.
(j) At the Execution Time, subject only to official notice of issuance. The Underwriter the Company shall have received furnished to the Underwriter a letter substantially in the form of Exhibit A-1 hereto from each of the signed Lock-Up Agreements referred entities listed on Schedule III hereto addressed to the Underwriter. If any of the conditions specified in this Section 5(j) 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any settlement date pursuant to Section 3 hereof, and each by the Underwriter. Notice of such Lock-Up Agreement cancellation shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof given to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished writing or by the Company telephone or any subsidiary of the Company hereunder facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.llp, counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Deliveryat ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, relating to ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (CAESARS ENTERTAINMENT Corp)
Conditions to the Obligations of the Underwriter. The Underwriter’s obligation of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
6.1 No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, ; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission in the manner and within the time period required by pursuant to Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information under the Act.
6.2 Since 1, there shall have been filed and become effective no material adverse change (not in accordance with the requirements ordinary course of Rule 430B). At business) in the condition of the Company.
6.3 The Company shall have delivered to the Underwriter a certificate, dated the Closing TimeDate, of the President, a Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the [Pooling and Servicing Agreement][Trust Agreement] and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement and in the [Pooling and Servicing Agreement][Trust Agreement] are true and correct in all material respects; and
(b) the Company has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
6.4 The Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, opinions of ▇▇▇▇▇▇ & ▇, ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the UnderwriterCompany, in form dated the Closing Date and substance reasonably satisfactory substantially to the Underwriter. In giving such opinion such counsel may relyeffect set forth in Exhibit A, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law opinion of the United States and the General Corporation Law of the State of Delaware, upon the opinions [name of counsel satisfactory to Master Servicer], dated the Closing Date and substantially to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. effect set forth in Exhibit B.
6.5 The Underwriter shall have received a certificate from [name of counsel to Underwriter], counsel for the President or a Vice President of the Company and of the chief financial or chief accounting officer of the CompanyUnderwriter, an opinion dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, Date in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter.
6.6 The Underwriter shall have received from Ernst & Young LLP [name of Company’s accountant], certified public accountants, a letter, letter dated as of Closing Timethe date hereof and satisfactory in form and substance to the Underwriter and the Underwriter’s counsel, to the effect that they reaffirm have performed certain specified procedures, all of which have been agreed to by the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of DeliveryUnderwriter, as the case may be, there shall not have been, since the date hereof or since the respective dates as a result of which they determined that certain information is given of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions “Description of the Mortgage Pool”, “Description of the [Certificates][Bonds]” and “Yield, Prepayment and Weighted Average Life” agrees with the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations records of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course excluding any questions of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the legal interpretation.
6.7 The Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. rated “[AAA]” by [Standard & Poor’s] and [Fitch Ratings] and “[Aaa]” by [▇▇▇▇▇’▇].
6.8 The Underwriter shall have received each the opinion of the signed Lock-Up Agreements referred to in Section 5(j) hereof[name of Trustee’s counsel], and each such Lock-Up Agreement shall be in full force and effect at dated the Closing Time and each Date of DeliveryDate, as substantially to the case may be. In the event that the Underwriter exercises the option provided effect set forth in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Exhibit C.
6.9 The Underwriter shall have received: Officers' Certificate. A certificatereceived from ▇▇▇▇▇▇, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ L.L.P.LLP, counsel for to the Company, reliance letters with respect to any opinions delivered to [Standard & Poor’s], [▇▇▇▇▇’▇] and [▇▇▇▇▇ Ratings]. The Company will furnish the General Counsel Underwriter with conformed copies of the Companyabove opinions, in form certificates, letters and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect documents as the opinions required by Section 6(b) hereofUnderwriter reasonably requests.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Units shall be subject to the accuracy of the representations and warranties on the part of the Company Partnership Parties contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company Partnership Parties made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Partnership Parties of its their respective obligations hereunder and to the following additional conditions: :
a) The Registration Statement Prospectus, and any supplement thereto, has become effective been filed in the manner and at within the Closing Time time period required by Rule 424(b); any material required to be filed by the Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with instituted or threatened.
b) The Partnership shall have requested and caused a written opinion relating to the reasonable satisfaction matters of counsel ▇▇▇▇▇▇▇▇ Islands law to have been furnished to the Underwriter. A prospectus containing , dated the Rule 430B Information Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
c) The Partnership shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., U.S. counsel for to the CompanyPartnership Parties, to have furnished to the Underwriter their written opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter.
d) The Partnership shall have requested and caused special Norwegian counsel to the Partnership Parties to have furnished to the Underwriter their written opinion, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto .
e) The Partnership shall have requested and to such further effect as caused special United Kingdom tax counsel to the Partnership Parties to have furnished to the Underwriter may reasonably request, and (ii) the favorable their written opinion, dated as of the Closing Time, of Date and addressed to the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiariesUnderwriter, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the .
f) The Underwriter shall have received the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory addressed to the Underwriter. In giving such opinion , with respect to the issuance and sale of the Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Partnership shall have furnished to such counsel may rely, such documents as they reasonably request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
g) The Partnership shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President Partnership, signed on behalf of the Company Partnership, by the Chief Executive Officer and Chief Financial Officer of the chief financial or chief accounting officer of the CompanyPartnership, dated as of the Closing TimeDate, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Partnership Parties in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the Company same effect as if made on the Closing Date and each of the Partnership Parties has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Partnership’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Underwriter Disclosure Package and the Prospectus (exclusive of any supplement thereto).
h) The Partnership Parties shall have received from requested and caused Ernst & Young LLP a letterAS to have furnished to the Underwriter at the Execution Time and at the Closing Date letters, dated respectively as of such datethe Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter containing statements and information Underwriter, (i) confirming that they are an independent registered public accounting firm within the meaning of the type ordinarily included in accountants' "comfort letters" to Act and the Underwriter Exchange Act and the applicable rules and regulations thereunder, adopted by the Commission and the PCAOB, and (ii) stating their conclusions and findings with respect to the financial statements information and certain financial information contained other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the Registration StatementUnited States.
i) Subsequent to the Execution Time or, if earlier, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties or results of operations of the Company and its subsidiaries Partnership Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the Securities on offering or delivery of the terms Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
j) Subsequent to the Execution Time, there shall not have been any decrease in the manner contemplated rating of any of the Partnership Entities’ debt securities, if any, by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the Prospectus. At Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the Closing Time, direction of the Securities possible change.
k) The Units shall have been approved listed and admitted and authorized for listing trading on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter , and reasonably satisfactory evidence of such actions shall have received been provided to the Underwriter.
l) At the Execution Time, the Partnership Parties shall have furnished to the Underwriter a letter substantially in the form of Exhibit C hereto from each of the signed Lock-Up Agreements referred persons listed on Schedule II hereto.
m) Prior to the Closing Date, the Partnership Parties shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request. If any of the conditions specified in this Section 5(j) hereof6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and each such Lock-Up certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in full force form and effect substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary Underwriter. Notice of the Company hereunder such cancellation shall be true and correct as of each Date of Delivery and, at given to the relevant Date of Delivery, the Underwriter Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate be delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the CompanyPartnership, and at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Firm Shares and the Option Shares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date any subsequent settlement date (solely with respect to the Option Shares) pursuant to Section 3 hereof (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of Delivery, as the case may besuch specified earlier date)), to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Final Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(binstituted or threatened.
(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, in form and substance satisfactory shall have furnished to counsel for the Underwriter, to at the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel request of the Company, with responsibility for the legal affairs of the Company their written opinions and its subsidiaries10b-5 statement, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At dated the Closing TimeDate or the Option Closing Date, as the Underwriter shall have received the favorable opinioncase may be, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such , to the effect set forth in Exhibit B hereto.
(c) The Underwriter shall have received the opinion such counsel may relyof ▇▇▇▇▇▇▇▇ and Wedge, opining as to all matters governed by the laws of jurisdictions other than the law of Nevada, addressed to the State of New York Underwriter and dated the federal law Closing Date, to the effect set forth in Exhibit C hereto.
(d) The Underwriter shall have received on and as of the United States Closing Date or the Option Closing Date, as the case may be, an opinion and 10b-5 statement of Proskauer Rose LLP, counsel for the General Corporation Law Underwriter, with respect to such matters as the Underwriter 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.
(e) On or before the execution of this Agreement, the State of Delaware, upon Underwriter shall have received from NSA a letter addressed to the opinions of counsel Underwriter in the form and substance reasonably satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, Underwriter containing statements and information with respect to the extent they deem proper, upon certificates of officers oil and gas reserves of the Company and its subsidiaries and certificates of public officials. the COP Assets as reported in the Disclosure Package and the Final Prospectus, and, as of the Closing, such letter shall not have been withdrawn by NSA or amended by NSA in any material respect.
(f) The Underwriter Company shall have received furnished to the Underwriter a certificate of the President or a Vice President Company, signed by the Chairman of the Company Board, the President and of Chief Executive Officer and the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Shares, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, Date with the same effect as if made on the Closing Date (iiiexcept to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or are pending or are contemplated by in the Commission. Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) At the time of the execution of this Agreement, KPMG LLP shall have furnished to the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such datethe date hereof and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter Underwriter, containing statements and information of the type ordinarily customarily included in accountants' "’ “comfort letters" ” to the Underwriter underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus. ; provided, that the letter delivered shall use a “cut-off” date no more than three (3) business days prior to the date hereof.
(1) At the time of the execution of this Agreement, Ernst & Young LLP shall have furnished to the Underwriter a letter, dated the date hereof and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter delivered shall use a “cut-off” date no more than three (3) business days prior to the date hereof; and (2) on the Closing TimeDate and any Option Closing Date (if such date is other than the Closing Date), the Underwriter shall have received a bring-down comfort letter from Ernst & Young LLP a letteraddressed to the Underwriter and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, dated as of Closing Timethe date of the bring-down letter (or, with respect to matters involving changes or developments since the effect that they reaffirm the statements made respective dates as of which specified financial information is given in the letter furnished pursuant to subsection (e) of this Section, except that Disclosure Package and the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of DeliveryFinal Prospectus, as the case may be, there shall as of a date not have been, since more than three (3) business days prior to the date hereof or since of the respective bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriter concurrently with the execution of this Agreement pursuant to this paragraph (h)(1) of this Section 6.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageFinal Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse changechange or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6, (ii) any Material Adverse Effect or (iii) any action taken or law, statute, rule, regulation or order enacted, adopted or issued, or any development involving a prospective material adverse changeissuance of an injunction or order, by any federal, state or foreign governmental or regulatory authority, the effect of which, in any case referred to in clause (i), (ii) or (iii) above, is, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the Securities offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(2) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Shares shall have been listed and admitted and authorized for trading on the terms NYSE, and in reasonably satisfactory evidence of such actions shall have been provided to the manner contemplated in Underwriter or counsel for the Prospectus. Underwriter.
(l) At the Closing Execution Time, the Securities Company shall have been approved for listing on furnished to the New York Stock Exchange, subject only to official notice Underwriter a letter substantially in the form of issuance. The Underwriter shall have received Exhibit A hereto from each executive officer and director of the signed Lock-Up Agreements referred Company set forth on Schedule IV hereto, addressed to in Section 5(j) hereofthe Underwriter, and each such Lock-Up Agreement which shall be in full force and effect at on the Closing Time Date and each Date of Deliveryany Option Closing Date, as the case may be. In .
(m) Prior to the event that Closing Date, the Company shall have furnished to the Underwriter exercises such further information, certificates (both of officers and various secretaries of state evidencing good standing), opinions and documents as the option Underwriter may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in Section 2(b) hereof to purchase all this Agreement, or if any portion of the Option Securities, the representations opinions and warranties of the Company contained herein and the statements certificates mentioned above or elsewhere in any certificates furnished by the Company or any subsidiary of the Company hereunder this Agreement shall not be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, reasonably satisfactory in form and substance satisfactory to the Underwriter and counsel for the Underwriter, dated this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such Date of Delivery, relating cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. In connection with the purchase of any Option Securities Shares on any settlement date, references to the “Closing Date” in this Section 6 shall instead refer to such settlement date. The documents required to be purchased delivered by this Section 6 shall be delivered at the office of Proskauer Rose LLP, counsel for the Underwriter, Eleven Times Square, New York, N.Y. 2012 at 10:00 a.m., EST, on such June 18, 2012 on the Closing Date of Delivery and otherwise to for review by the same effect as the opinions required by Section 6(b) hereofUnderwriter or Proskauer Rose LLP.
Appears in 1 contract
Sources: Underwriting Agreement (Endeavour International Corp)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the CommissionProspectus, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been amendment or supplement thereto, will be filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information ); and no stop order suspending the effectiveness of the Registration Statement shall have been filed issued and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter no proceedings for that purpose shall have received been instituted or threatened.
(ib) the favorable opinion, dated as of the Closing Time, of ▇The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, in form to have furnished to the Underwriter their opinion, dated the Closing Date and substance satisfactory addressed to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and that:
(iii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs each of the Company and its subsidiaries, including the Partnership, has been duly incorporated or organized and is validly existing as a corporation or other organization in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, as amended or supplemented, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification and is subject to no material liability or disability by reason of the failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership interests of each subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth on Exhibit A or in the Prospectus, as amended or supplemented, all outstanding shares of capital stock or partnership interests of such subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable, and the shares of Series 4 preferred stock have been duly and validly authorized and, when issued, will be duly and validly issued, fully paid and nonassessable; the Securities have been duly and validly authorized and, when issued and delivered to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, on the New York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities arising by operation of law or the Company’s articles of incorporation or By-laws, or, to the knowledge of such counsel, under any agreement by which the Company is bound; and, except as set forth in the Prospectus, as amended or supplemented, or such opinion, to the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document relating to the Company or its subsidiaries of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus under the headings “Capital Stock”, “Description of Common Stock”, “Description of Preferred Stock”, “Description of Depositary Shares”, insofar as they purport to constitute a summary of the terms of the Securities, and the statements included or incorporated by reference in the Prospectus under the heading “Plan of Distribution” and in the Prospectus Supplement under the headings “Certain Federal Income Tax Considerations” and “Underwriting” (other than the information furnished in writing to the Company by or on behalf of the Underwriter), insofar as such statements summarize legal matters, agreements to which the Company is a party, documents or proceedings discussed therein, are accurate and fair summaries of such terms, legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any amendments or supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion), each as amended or supplemented, comply as to form in all material respects with the applicable requirements of the Act and substance the Exchange Act and the respective rules thereunder; and although counsel assumes no responsibility for the accuracy, completeness or fairness of statements made therein except to the extent set forth in paragraph (iv) above, such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date or on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required to be obtained by the Company in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriter in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) the execution and delivery by the Company of this Agreement, its compliance with all of the provisions hereof and the consummation by the Company of any of the transactions herein contemplated, and, to the knowledge of such counsel, the sale of the Securities being sold by Company and the consummation by the parties other than the Company of any of the transactions herein contemplated, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or any of its subsidiaries (including the Partnership) is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or its subsidiaries (including the Partnership) of any court, regulatory body, administrative agency, governmental body or arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties other than, in the case of clauses (ii) and (iii), such breaches or violation which, if determined adversely to the Company, would not reasonably be expected to have a material adverse effect on the current or future consolidated financial position, shareholders’ equity or results of operations of the Company and its subsidiaries taken as a whole or on the consummation of the transactions contemplated herein;
(x) to such counsel’s knowledge no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(xi) The Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code for each taxable year since its inception through the most recently completed fiscal year, and based on assumptions set forth in the Prospectus and certain representations of the Company, including but not limited to those set forth in an Officer’s Certificate, the Company’s present and contemplated organization, ownership, method of operation, assets and income are such that the Company is in a position under present law to so qualify for the current fiscal year and in the future. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the UnderwriterUnderwriter and (B) as to matters of fact, to the effect set forth in Exhibit A-3 hereto extent they deem proper, on certificates of responsible officers of the Company and to such further effect as counsel public officials. References to the Underwriter may reasonably request. At Prospectus in this paragraph (b) shall also include any amendments or supplements thereto at the Closing Time, the Date.
(c) The Underwriter shall have received the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory addressed to the Underwriter. In giving such opinion , with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any amendment or supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
(d) The Company shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President Company, signed by the Chairman of the Company Board or the President and of the chief principal financial or chief accounting officer of the CompanyCompany or two other authorized signatories, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any amendments or supplements to the Prospectus and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Timeor, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection Company’s knowledge, threatened; and
(eiii) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof of the most recent financial statements included or since the respective dates as of which information is given incorporated by reference in the Prospectus and the General Disclosure Package(exclusive of any amendment or supplement thereto), any there has been no material adverse change, or any development involving a prospective material adverse change, in effect on the condition, condition (financial or otherwise, or in the earnings, business), prospects, earnings, business or properties or results of operations of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, that, except as set forth in or contemplated in the reasonable judgment Prospectus (exclusive of any amendment or supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have furnished to the Underwriter, makes it impracticable to market at the Securities on the terms Execution Time and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Date, letters, dated respectively as of the Execution Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the CompanyDate, in form and substance satisfactory to counsel for the Underwriter, dated such Date confirming that they are independent accountants within the meaning of Deliverythe Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the six-month period ended June 30, relating 2004, and as at June 30, 2004 in accordance with Statement on Auditing Standards No. 100, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules and, if applicable, pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the six-month period ended June 30, 2004, and as at June 30, 2004, incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the Option Securities comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the executive, audit and investment committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to be purchased transactions and events subsequent to December 31, 2003, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on such Date Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of Delivery and otherwise to the same effect as audited financial statements included or incorporated by reference in the opinions required by Section 6(b) hereof.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with requested and caused Ledgewood PC, counsel for the Company, to have furnished to the reasonable satisfaction of counsel Underwriter its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Underwriter in form and substance acceptable to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b.
(c) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the The Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form its opinions and substance reasonably satisfactory negative assurance letter, dated the Closing Date and any settlement date and addressed to the Underwriter. In giving such opinion , and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
(d) The Company shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President Company, signed by the Chief Executive Officer or a Vice President of the Company and of the chief financial or chief accounting officer Chief Financial Officer of the Company, dated as of the Closing TimeDate and any settlement date, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct on and as of such date with the same force and effect as though expressly if made at on such date and as of the Closing Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and such date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or are pending or are contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Underwriter a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission. At , and (iv) as to the time incumbency of the execution officers of this Agreement, the Underwriter Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have received from Ernst & Young LLP a letterrequested and caused Withum to have furnished to the Underwriter, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of such the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and certain financial information contained statement schedules included in the Registration Statement, the General Disclosure Package Statutory Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. At References to the Closing TimeProspectus in this paragraph (f) include any supplement thereto at the date of the applicable letter.
(g) Subsequent to the Execution Time or, if earlier, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties or results of operations of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the terms and in the manner contemplated in the Prospectus. At the Closing TimeNasdaq Capital Market, the Securities satisfactory evidence of which shall have been approved provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter and the Services Agreement.
(k) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for listing on that purpose shall have been instituted or shall have been threatened.
(m) Prior to the New York Stock ExchangeClosing Date and any settlement date, subject only the Company shall have furnished to official notice the Underwriter such further information, certificates and documents as the Underwriter may reasonably request. If any of issuancethe conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Underwriter shall have received each of the signed Lock-Up Agreements referred documents required to in Section 5(j) hereof, and each such Lock-Up Agreement be delivered by this Section 6 shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofany applicable settlement date.
Appears in 1 contract
Sources: Underwriting Agreement (Ftac Zeus Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The Underwriter's obligation of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
6.1 No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, ; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission in the manner and within the time period required by pursuant to Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information under the Act.
6.2 Since _____, 20__ there shall have been filed and become effective no material adverse change (not in accordance with the requirements ordinary course of Rule 430B). At business) in the condition of the Company.
6.3 The Company shall have delivered to the Underwriter a certificate, dated the Closing TimeDate, of the President, a Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement and in the [Pooling and Servicing] [Trust] Agreement are true and correct in all material respects; and
(b) 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 hereunder at or prior to the Closing Date.
6.4 The Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, opinion of ▇▇▇▇▇▇ & , ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Maw LLP special counsel for the Underwriter, Company dated the Closing Date in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. .
6.5 The Underwriter shall have received a certificate of from _____________, counsel for the President or a Vice President of the Company and of the chief financial or chief accounting officer of the CompanyUnderwriter, an opinion dated as of the Closing Time, Date in form and substance reasonably satisfactory to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter.
6.6 The Underwriter shall have received from Ernst & Young LLP ___________, certified public accountants, a letter, letter dated as of such date, the date hereof and satisfactory in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing TimeUnderwriter's counsel, to the effect that they reaffirm have performed certain specified procedures, all of which have been agreed to by the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Deliveryunderwriter, as the case may be, there shall not have been, since the date hereof or since the respective dates as a result of which they determined that certain information is given of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions "Description of the Mortgage Pool", ["Pooling and Servicing Agreement"] ["The Trust Agreement"], "Description of the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in Certificates" and "Certain Yield and Prepayment Considerations" agrees with the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations records of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course excluding any questions of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereoflegal interpretation.
Appears in 1 contract
Sources: Underwriting Agreement (Stanwich Asset Acceptance CO LLC)
Conditions to the Obligations of the Underwriter. The Underwriter's obligation of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
6.1 No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, ; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission in the manner and within the time period required by pursuant to Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Timeany change, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Companyor any development involving a prospective change, in form and substance satisfactory to counsel for or affecting the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel business or properties of the Company, ____________________, a ____________ (the "Seller") or any of their respective affiliates the effect of which, in any case, is, in that Underwriter's reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with responsibility for the legal affairs offering or the delivery of the Company Certificates as contemplated by the Registration Statement and its subsidiaries, in form the Prospectus. All actions required to be taken and substance satisfactory all filings required to counsel for be made by the Underwriter, Issuer under the Act and the Exchange Act prior to the effect set forth in Exhibit A-3 hereto and sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to such further effect as counsel to the Underwriter may reasonably request. At you a certificate, dated the Closing TimeDate, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a the Executive Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(i) there has been no Material Adverse Change since the date hereof, (iia) the representations and warranties of the Company in Section 1 hereof this Agreement and in the Pooling and Servicing Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, in all material respects;
(iiib) the Company has has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and Date;
(ivc) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory contemplated;
(d) subsequent to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Prospectus, and except as set forth or contemplated in the General Disclosure PackageProspectus, there has not been any material adverse change, or any development involving a prospective material adverse change, change in the condition, financial or otherwise, or in the earningsgeneral affairs, business, prospectskey personnel, properties capitalization, financial condition or results of operations of the Company and its subsidiaries taken or the Seller;
(e) except as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated otherwise stated in the Prospectus. At , there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to their knowledge, threatened, against the Closing Time, Company or the Securities shall Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Certificates have been approved for listing on rated in one of the New York Stock Exchange, subject only to official notice four highest grades by each of issuance. The Underwriter such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 You shall have received each the opinions of Thacher Proffitt & Wood LLP, special counsel for the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificateCompany, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of th▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇nd ▇▇▇▇tantially to the effect set forth in Exhibit A and Exhibit B.
6.5 You shall have received from counsel for the Underwriter, an opinion dated the Closing Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by the Underwriter, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the captions "Description of the Mortgage Pool", "Pooling and Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the records of the Company excluding any questions of legal interpretation.
6.7 The Certificates shall have been rated "AAA" by [each of] [Standard & Poor's Ratings Services] and [Fitch Ratings] and "Aaa" by [Moody's Investors Service, Inc.].
6.8 You shall have received th▇ ▇▇▇▇▇on of [Trustee's Counsel], dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from Thacher Proffitt & Wood LLP, special counsel to the Company, and from ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ L.L.P., counsel for the to ▇▇▇ Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and the General Counsel [Fitch Ratings] and [Moody's Investors Service, Inc.]. The Company will ▇▇▇▇▇▇▇ you with conformed copies of the Companyabove opinions, in form certificates, letters and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect documents as the opinions required by Section 6(b) hereofyou reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Opteum Mortgage Acceptance CORP)
Conditions to the Obligations of the Underwriter. The obligation obligations ------------------------------------------------ of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Selling Stockholders contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company Company, the Operating Partnership and the Selling Stockholders made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Company, the Operating Partnership and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions: The :
(a) If the Registration Statement has not become effective and at prior to the Closing Time no stop order suspending Execution Time, unless the effectiveness of Underwriter 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 on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any notice objecting supplement thereto, is required pursuant to its use shall have been issued under Rule 424(b), the 1933 Act or proceedings therefor initiated or threatened by the CommissionProspectus, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been such supplement, will be filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information ); and no stop order suspending the effectiveness of the Registration Statement shall have been filed issued and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter no proceedings for that purpose shall have received been instituted or threatened.
(ib) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the The Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Assistant General Counsel and Assistant Secretary of the Company, to have furnished to the Underwriter his opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) the Company 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 in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly organized, is validly existing as a corporation, limited or general partnership or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the power and authority to own and lease its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the outstanding shares of the Company's Common Stock (including the Securities) and preferred stock have been duly authorized and validly issued and are fully paid and non-assessable and none of such shares was issued in violation of any preemptive or similar rights;
(iv) the outstanding Ownership Interests in each subsidiary have been duly authorized and validly issued, are fully paid and (except for general partnership interests) non-assessable; all of the outstanding limited partnership interests in the Operating Partnership are owned (except as otherwise set forth in the Prospectus) directly by the Company, all of the outstanding general partnership interests in the Operating Partnership are owned directly by the Company, and all of the Company's Ownership Interests in each of the other subsidiaries are owned directly or indirectly by the Company, in each case free and clear of all liens, encumbrances, equities or claims, except for liens created by the Pledge Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership;
(vi) the execution and delivery by the Company and the Operating Partnership of, and the performance by the Company and the Operating Partnership of their respective obligations under, this Agreement will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, the Credit Agreement, any Senior Note Document or, to the best of such counsel's knowledge, any other agreement or instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (B) result in a breach or violation of or default under any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries; and no consent, approval, authorization or order of, or qualification with, any Maryland or Delaware governmental body or agency having jurisdiction over the Company or the Operating Partnership is required under the laws of the State of Maryland or the Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") for the offering, issuance or sale of the Securities as contemplated by this Agreement, except such as may be required by Maryland securities laws;
(vii) the statements (A) in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000 (the "2000 10- K") under the captions "Business and Properties--Environmental and Regulatory Matters," "Business and Properties--The Management Agreements," "Business and Properties--Non-competition Agreements," "Legal Proceedings," and (B) in the Company's Proxy Statement dated April 12, 2001 under the caption "Certain Relationships and Related Transactions," in each case insofar as such statements constitute summaries of legal matters, documents or proceedings, are accurate in all material respects;
(viii) to the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and that are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(ix) the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(x) each document filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act (except for financial statements and schedules and other financial and statistical data, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder. In passing upon compliance as to form of such documents, such counsel may assume that the statements made and incorporated by reference therein are correct and complete.
(c) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company and the Operating Partnership, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect as set forth in Schedule III.
(d) In addition to the opinion set forth above in Section 6(b), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, will also state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, and representatives of the Underwriter, at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel may state that such counsel is not passing upon, and does not assume any responsibility for the accuracy, completeness or fairness of, the statements contained or incorporated by reference in the Registration Statement and the Prospectus and such counsel has not made any independent check or verification thereof (except as set forth in Section 6(b)(vii)), during the course of such participation, no facts came to such counsel's attention that have caused such counsel to believe that the Registration Statement, at the time it 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, as of May 29, 2001 or as of the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such counsel may state that they express no belief with respect to the financial statements, schedules and other financial and statistical data included or incorporated by reference in or omitted from the Registration Statement or the Prospectus. The opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. described in Sections 6(b) and 6(c) above shall state, solely in the case of those opinions of counsel which refer to subsidiaries of the Company, that all references in such opinions to "subsidiaries" of the Company include, without limitation, the Operating Partnership and the Non-Controlled Subsidiaries. In addition, the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall state that it covers matters arising under the laws of the State of Maryland, the general corporation law of the State of Delaware (the "DGCL"), the Partnership Act, the Delaware Limited Liability Company Act and the federal laws of the United States, and shall further state that, to the extent that the opinion set forth in Section 6(b)(vi) relates to any instrument or agreement which is governed by the laws of any jurisdiction other than the State of Maryland, such counsel has assumed that the laws of such other jurisdiction are in all relevant respects identical to the laws of the State of Maryland; the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state that it covers matters arising under the laws of the State of Maryland, the Partnership Act and the federal laws of the United States.
(e) The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Stockholders, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) Each Selling Stockholder is the sole registered owner of the Securities to be sold by such Selling Stockholder; each Selling Stockholder has full partnership or corporate power, right and authority to sell such Securities and upon payment for and delivery of the Securities in accordance with this Agreement, the Underwriter will acquire a security entitlement (within the meaning of the UCC) with respect to the Securities and will also acquire their interest in the Securities free of any adverse claim (within the meaning of the UCC), assuming that the Underwriter does not have notice of any adverse claim (within the meaning of the UCC) to the Securities and assuming further that the transfer agent for the Company's Common Stock properly performs the instructions provided by the Selling Stockholders and delivers the Securities by book-entry transfer to the Underwriter.
(ii) This Agreement has been duly authorized, executed and delivered by or on behalf of each Selling Stockholder.
(iii) The sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement will not breach or result in a default under any indenture or other agreement or instrument identified on a schedule annexed to such opinion furnished to such counsel by the Selling Stockholders and which each Selling Stockholder has represented lists all material instruments to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, nor will such action violate the constituting documents of any Selling Stockholder or any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any rule or regulation issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act by any court or governmental agency or body or court having jurisdiction over any Selling Stockholder or any of its properties.
(iv) No consent, approval, authorization, order, registration or qualification of or with any Federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or, to our knowledge, any Federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act is required for the sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement, except for the registration under the Securities Act of the Securities, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriter.
(f) The Underwriter shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & Wood LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory addressed to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory with respect to the Underwriter. Such counsel Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may also state thatreasonably require, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of and the Company and its subsidiaries and certificates of public officials. The Underwriter each Selling Stockholder shall have received furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter and to the Selling Stockholders a certificate of the President or a Vice President of Company, signed by an executive officer and the Company and of the chief principal financial or chief accounting officer of the Company, dated in their capacity as executive officers of the Company and in their capacity as executive officers of the general partner of the Operating Partnership, dated the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company and the Operating Partnership in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Timeor, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.C
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, PNMAC and the Selling Stockholder contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company Company, PNMAC and the Selling Stockholder made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Company, PNMAC and the Selling Stockholder of its their obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to you.
(c) The Selling Stockholder shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP, counsel counsels for the Selling Stockholder, to have furnished to the Underwriter their opinions, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. you.
(d) The Underwriter shall have received from ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company and PNMAC shall have furnished to you a certificate of the President or a Vice President on behalf of the Company and PNMAC, signed by each of the chief respective Chairman of the Board or the President and the principal financial or chief accounting officer of each of the CompanyCompany and PNMAC, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company and PNMAC in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and each of the Company has and PNMAC have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s or are pending or are contemplated by PNMAC’s knowledge, threatened; and
(iii) since the Commission. At the time date of the execution most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no Material Adverse Effect except as set forth in or contemplated in the Underwriter Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Selling Stockholder shall have received from Ernst & Young LLP a letterfurnished or caused to be furnished to you at the Closing Date certificates of officers of the Selling Stockholder, dated reasonably satisfactory to you as to the accuracy of the representations and warranties of the Selling Stockholder herein at and as of such dateClosing Date, as of to the performance by the Selling Stockholder of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as you may reasonably request.
(g) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to you, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are independent accountants within the Underwriter containing statements and information meaning of the type ordinarily included Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating in accountants' "comfort letters" to effect that:
(iv) in their opinion the Underwriter with respect to the audited financial statements and certain financial information contained statement schedules and pro forma financial statements included in the Registration Statement, the General Disclosure Package Preliminary Prospectus and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and reported on by them comply as to form with the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations applicable accounting requirements of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein Act and the statements in any certificates furnished related rules and regulations adopted by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.Commission;
Appears in 1 contract
Sources: Underwriting Agreement (Pennymac Financial Services, Inc.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Final Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Timecaused Skadden, the Underwriter shall have received (i) the favorable opinionArps, dated as of the Closing TimeSlate, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel have furnished to the Underwriter may reasonably requesttheir opinion and negative assurance letter, and (ii) the favorable opinion, each dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company Date and its subsidiaries, in form and substance satisfactory addressed to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving rendering such opinion opinion, such counsel may rely, rely (A) as to all matters governed by involving the application of laws of jurisdictions any jurisdiction other than the law of the State of New York and or the federal law Federal laws of the United States States, to the extent they deem proper and the General Corporation Law of the State of Delawarespecified in such opinion, upon the opinions opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter. Such counsel may also state that, insofar Underwriter and (B) as such opinion involves factual matters, they have reliedto matters of fact, to the extent they deem proper, upon on certificates of responsible officers of the Company and its subsidiaries public officials.
(c) The Company shall have requested and caused DLA Piper LLP (US), counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Maryland or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. .
(d) The Underwriter shall have received from ▇▇▇▇▇ Day, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriter a certificate of the President or a Vice President Company, signed by the Chairman of the Company Board or the President and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of this Agreementany supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Underwriter Operating Partnership and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have received from requested and caused Ernst & Young LLP a letterto have furnished to the Underwriter, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to the Underwriter), dated respectively as of such datethe Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter Underwriter, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to the Underwriter underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus. At .
(g) Subsequent to the Closing TimeExecution Time or, if earlier, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageFinal Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties 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, thatexcept as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the manner contemplated rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the Prospectus. At direction of the possible change.
(i) Prior to the Closing TimeDate, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(j) The Securities shall have been approved listed and admitted and authorized for listing trading on the New York Stock Exchange, subject only to official notice and satisfactory evidence of issuance. The Underwriter such actions shall have received each of been provided to the signed Lock-Up Agreements referred Underwriter.
(k) Prior to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of DeliveryDate, as the case may be. In the event that Company shall have furnished to the Underwriter exercises a letter substantially in the option provided in Section 2(b) hereof to purchase all or any portion form of the Option Securities, the representations Exhibit A hereto from each executive officer and warranties director of the Company contained herein and addressed to the statements in any certificates Underwriter.
(l) The Company shall have furnished by to the Company or any subsidiary Underwriter a certificate of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief principal financial or chief accounting officer of the Company confirming Company, at the Execution Time and at the Closing Date, to the effect that the signer of such certificate is familiar with the accounting, operations and records systems of the Company, certifying that certain statements in identified pages of the Company’s proxy statement are, to the knowledge of the signer, accurate in all material respects and such other matters as the Underwriter shall reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions office of ▇▇▇▇▇ Day, counsel for the Underwriter, at ▇▇▇ & ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ L.L.P.▇▇▇▇, counsel for ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The Underwriter’s obligation of the Underwriter to purchase the Securities Certificates shall be subject to (i) the accuracy on and as of the Closing Date of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to contained; (ii) the performance by the Company of all of its obligations hereunder hereunder; and (iii) the following conditions as of the Closing Date:
6.1 No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the following additional conditions: The knowledge of the Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission not later than the time required by Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement has become effective and at the Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Company, the Seller or any of their respective affiliates the effect of which, in any case, is, in that Underwriter’s reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Registration Statement and the Prospectus. All actions required to be taken and all filings required to be made by the Issuer under the Act and the Exchange Act prior to the sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to the Underwriter a certificate, dated the Closing Time Date, of the President, a Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement and all other Transaction Documents to which it is a party are true and correct in all material respects; and
(b) the Company has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall has been issued and no proceedings for that purpose have been issued under instituted or are contemplated;
(d) subsequent to the 1933 Act respective dates as of which information is given in the Prospectus, and except as set forth or contemplated in the Prospectus, there has not been any material adverse change in the general affairs, business, key personnel, capitalization, financial condition or results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no actions, suits or proceedings therefor initiated pending before any court or threatened governmental agency, authority or body or, to their knowledge, threatened, against the Company or the Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Commission, and any request on the part Certificates have been rated in one of the Commission for additional information from four highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 The Company shall have been complied with delivered to you a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of the Company to the reasonable satisfaction effect that the signer of counsel such certificate has examined this Agreement, the Prospectus and various other closing documents, and that, to his or her actual knowledge that the Underwriter. A prospectus containing representations and warranties of the Rule 430B Information shall have been filed with the Commission Company, respectively, in the manner this Agreement are true and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective correct in accordance with the requirements all material respects as of Rule 430B). At the Closing Time, the Date.
6.5 The Underwriter shall have received (i) the favorable opinion, dated as opinions of the Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.llp, special counsel for the Company, in form dated the Closing Date and substance satisfactory to counsel for the Underwriter, substantially to the effect set forth in Exhibit A-2 hereto ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-3 [NOTE: Exhibit A-3 will be revised to such further effect as address the Definitive Free Writing Prospectus], the opinions of in-house counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of for the Company, with responsibility for dated the legal affairs of the Company Closing Date and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, substantially to the effect set forth in Exhibit A-3 hereto ▇-▇ and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as Exhibit B-2 and an opinion of the Closing Time, of ▇▇▇▇▇▇ ▇▇Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to Company, substantially to the effect set forth in Exhibit B-3.
6.6 The Underwriter shall have received from counsel an opinion dated the Closing Date in form and substance satisfactory to the Underwriter.
6.7 The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter’s counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by the Underwriter, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the captions “The Mortgage Pool”, “Description of the Certificates”, “Yield on the Certificates” and “Pooling and Servicing Agreement” agrees with the records of the Company excluding any questions of legal interpretation.
6.8 The Certificates shall have been rated at least as described directly below by [Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ LLPCompanies, counsel for the UnderwriterInc. (“S&P”)] and [▇▇▇▇▇'▇ Investors Service, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officialsInc. (“▇▇▇▇▇'▇”)]. The Underwriter shall have received a certificate copy of the letter from each of the respective rating agencies to such effect; and such ratings shall not have been withdrawn on or before the Closing Date.
6.9 The Underwriter’s shall have received the opinion of [Trustee’s counsel], dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.10 The Underwriter shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood llp, special counsel to the Company, and from in-house counsel to the Company, reliance letters with respect to any opinions delivered to [S&P] and [Moody's.]
6.11 The Underwriter shall have received a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations good standing of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in due authorization by the reasonable judgment Company of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner transactions contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. herein.
6.12 The Underwriter shall have received each of such further information, certificates and documents as the signed Lock-Up Agreements referred to in Section 5(j) hereofUnderwriter may reasonably have requested, and each such Lock-Up all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, material respects reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter and the Underwriter’s counsel. The Company will furnish the Underwriter with conformed copies of the above opinions, dated such Date certificates, letters and documents as reasonably request. If any of Deliverythe conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, relating or, if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Option Securities to Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be purchased on canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such Date of Delivery and otherwise cancellation shall be given to the same effect as the opinions required Company in writing, or by Section 6(b) hereoftelephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Deliveryany settlement date pursuant to Section 3, as the case may behereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇caused ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ London LLP, counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(d) The Underwriter shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory any settlement date, as applicable, and addressed to the Underwriter. In giving such opinion , with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
(e) The Company shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of Company, signed by the Company Chief Executive Officer and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct on and as of such date with the same force and effect as though expressly if made at on such date and as of the Closing Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and such date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Underwriter Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have received from Ernst & Young LLP a letterrequested and caused ▇▇▇▇▇▇ to have furnished to the Underwriter, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of such the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" Underwriter.
(g) Subsequent to the Underwriter with respect to the financial statements and certain financial information contained in the Registration StatementExecution Time or, if earlier, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in affecting the earnings, business, prospectsmanagement, properties properties, assets, rights, operations, condition (financial or results of operations otherwise) or prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date and any settlement date, as applicable, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the terms and in the manner contemplated in the Prospectus. At the Closing TimeNasdaq Global Market, the Securities satisfactory evidence of which shall have been approved provided to the Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder's Subscription Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for listing the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the New York Stock Exchangecover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, subject only and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to official notice the Underwriter and counsel for the Underwriter, this Agreement and all obligations of issuancethe Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Underwriter shall have received each documents required to be delivered by this Section 6 and, if applicable, the last sentence of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement 3 shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.(UK) LLP, counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such at 40 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date of Deliveryor the applicable settlement date, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofapplicable.
Appears in 1 contract
Sources: Underwriting Agreement (Mountain & Co. I Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter hereunder to purchase the Securities Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time and each Date of DeliveryDate, as of the case may bedate the Prospectus Supplement or any supplement thereto is filed with the Commission prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
(a) No stop order suspending the effectiveness of the Registration Statement or any notice objecting Statement, as amended from time to its use time, shall have been issued under the 1933 Act or and not withdrawn and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with instituted or, to the reasonable satisfaction of counsel to Company's knowledge, threatened; and the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with Rule 424 under the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory .
(b) The Company shall have delivered to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law Underwriter a certificate of the State of New York and the federal law of the United States and the General Corporation Law of the State of DelawareCompany, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers signed by an authorized officer of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that that: (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made in all material respects at and as of the Closing Time, Date with the same effect as if made on the Closing Date; and (iiiii) the Company has in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing TimeDate.
(c) The Underwriter shall have received with respect to the Company a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than 30 days prior to the Closing Date.
(d) The Underwriter shall have received from the Secretary or an assistant secretary of the Company, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (i) each individual who, as an officer or representative of the Company, signed this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, in the Pooling and Servicing Agreement or in the Mortgage Loan Purchase Agreements, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ivii) no event (including, without limitation, any act or omission on the part of the Company) has occurred since the date of the good standing certificate referred to in paragraph (c) above which has affected the good standing of the Company under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an assistant secretary of the Company) of the certificate of incorporation and by-laws of the Company, as in effect on the Closing Date, and of the resolutions of the Company and any required shareholder consent relating to the transactions contemplated in this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements.
(e) The Underwriter shall have received from Sidley & Austin, special counsel for the Company, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriter and counsel for the Underwriter, to the effect that:
(i) The Registration Statement and any post-effective amendments thereto have become effective under the 1933 Act.
(ii) To the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and not withdrawn, and no proceedings for that purpose have been instituted or are pending threatened and not terminated.
(iii) The Registration Statement, each post-effective amendment thereto (if any), the Basic Prospectus and the Prospectus Supplement, as of their respective effective or are contemplated issue dates (other than the financial statements, schedules and other financial and statistical information contained therein or omitted therefrom and other than information incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the Commission. At the time applicable requirements of the execution 1933 Act and the rules and regulations of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as Commission thereunder.
(iv) To the best knowledge of such datecounsel, in form and substance satisfactory there are no material contracts, indentures or other documents relating to the Underwriter containing statements and information Certificates of a character required to be described or referred to in the type ordinarily included in accountants' "comfort letters" Registration Statement or the Prospectus Supplement or to the Underwriter with respect be filed as exhibits to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package other than those described or referred to therein or filed or incorporated by reference as exhibits thereto.
(v) The Mortgage Loan Purchase Agreements and the Prospectus. At the Closing TimePooling and Servicing Agreement each constitute a valid, the Underwriter shall have received from Ernst & Young LLP a letterlegal, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time binding and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel enforceable agreement of the Company, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, to general principles of equity regardless of whether enforcement is sought in form a proceeding in equity or at law and substance satisfactory to counsel for public policy considerations underlying the Underwritersecurities laws, dated such Date of Delivery, relating to the Option Securities extent that such public policy considerations limit the enforceability of the provisions of such agreement that purport or are construed to provide indemnification from securities law liabilities.
(vi) The Certificates, when duly and validly executed, authenticated and delivered in accordance with the Pooling and Servicing Agreement and paid for in accordance with this Agreement, will be purchased on such Date of Delivery duly and otherwise validly issued and outstanding and entitled to the same effect benefits of the Pooling and Servicing Agreement.
(vii) The statements set forth in the Prospectus Supplement under the headings "Description of the Offered Certificates" and "Servicing of the Mortgage Loans" and in the Basic Prospectus under the headings "Description of the Securities", "Servicing of Mortgage Loans" and "The Trust Agreement", insofar as such statements purport to summarize certain material provisions of the opinions required by Section 6(b) hereofCertificates and the Pooling and Servicing Agreement, are accurate in all material respects.
Appears in 1 contract
Sources: Underwriting Agreement (Structured Asset Sec Corp Mort Pass THR Cert Ser 1999-C2)
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase the Securities Offered Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date (including the filing of any document incorporated by reference therein) and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Underwriter shall have received from (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and at the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Time Date, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Company or proceedings therefor initiated or threatened the Underwriter, shall have been contemplated by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with .
(c) Subsequent to the reasonable satisfaction execution and delivery of counsel to the Underwriter. A prospectus containing the Rule 430B Information this Agreement, there shall not have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received occurred (i) any change, or any development involving a prospective change, in or affecting particularly the favorable opinion, dated as business or properties of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for Company or the CompanyServicer which, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, to materially impairs the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to investment quality of the Underwriter may reasonably request, and Offered Certificates; (ii) any downgrading in the favorable opinion, dated as rating of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs securities of the Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in form and substance satisfactory to counsel for the reasonable judgment of the Underwriter, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as proceed with completion of the Closing Time, sale of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel and payment for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of the President or a Vice President an executive officer of the Company and of the chief financial or chief accounting in which such officer of the Company, dated as of the Closing Timeshall state that, to the effect that best of such officer's knowledge after reasonable inspection, (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company contained in Section 1 hereof the Basic Documents are true and correct with the same force and effect as though expressly if made at and as of on the Closing Time, Date and (iiiii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection Date.
(e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each an opinion of counsel for the Company, which may be an opinion of in-house counsel to the Company, to the effect that:
(i) The Company is a corporation, duly incorporated, validly existing and in good standing under the laws of the signed Lock-Up Agreements referred state of Delaware;
(ii) The Company has the requisite corporate power and authority to in Section 5(jexecute, deliver and perform its obligations under the Basic Documents;
(iii) hereofThe execution and delivery by the Company of, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties performance of the Company contained herein under, the Basic Documents have been duly authorized by all necessary corporate action of the Company;
(iv) Each of the Basic Documents has been duly executed and delivered by the Company;
(v) To the best of such counsel's knowledge and information, the execution and delivery of the Basic Documents and the statements consummation of the transactions contemplated therein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any certificates furnished by the Company lien, charge or encumbrance upon any subsidiary property or assets of the Company hereunder shall pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument, agreement or document to which the Company is a party or by which it may be true bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the charter or by-laws of the Company, or any law, administrative regulation or administrative or court decree applicable to the Company; and
(vi) To the best of such counsel's knowledge, there is (A) no legal or governmental proceeding pending or threatened to which the Company is a party or to which any of the properties of the Company is subject that is required to be described in the Registration Statement or the Prospectus and correct is not so described and (B) no material contract or document that is required to be described in the Registration Statement or the Prospectus or to be filed as of each Date of Delivery and, at an exhibit to the relevant Date of Delivery, the Registration Statement that is not so described or filed as required.
(f) The Underwriter shall have received: Officers' Certificate. A certificate, dated such Date received a certificate of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting an executive officer of the Company confirming Servicer, dated as of the Closing Date, to the effect that, to the best of such officer's knowledge, such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the certificate Final Prospectus as amended or supplemented, insofar as it relates to the Servicer, contains any untrue statement of a material fact 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.
(g) The Underwriter shall have received an opinion of counsel for the Servicer, which may be an opinion of in-house counsel to the Servicer, to the effect that:
(i) The Servicer is duly organized and validly existing as a national banking association in good standing under the federal laws of the United States and has the requisite power and authority, corporate or other, to own its own properties and conduct its own business, as presently conducted by it, and to enter into and perform its obligations under the Basic Documents to which it is a party and the Certificates;
(ii) Each of the Basic Documents to which the Servicer is a party has been duly and validly authorized, executed and delivered at by such party;
(iii) No consent, approval, authorization or order of the Closing Time pursuant State of North Carolina or federal court or governmental agency or body is required under the statutes, rules and regulations specifically regulating (as opposed to Section 6(dthose of general application which may apply to) hereof remains true national banking associations and correct as which are administered by federal or North Carolina bank regulatory authorities ("Applicable North Carolina or Federal Law") for the consummation by the Servicer of the transactions contemplated by the terms of the Basic Documents to which the Servicer is a party, except for those consents, approvals, authorizations or orders which previously have been obtained;
(iv) The consummation of the transactions contemplated by, and the performance by the Servicer of any other of the terms of, the Basic Documents to which it is a party, will not result in a breach of any term or provision of the charter or by-laws of the Servicer or, to the best of such Date counsel's knowledge, conflict with, result in a breach, violation or acceleration of, or constitute a default under, the terms of Delivery. Opinions any material indenture or other material agreement or instrument to which the Servicer is a party or by which it is bound or any order of Counsel for Company. any State of North Carolina or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Servicer or any Applicable North Carolina or Federal Law; and
(v) To the best of such counsel's knowledge, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (A) asserting the invalidity of the Basic Documents to which the Servicer is a party or the Certificates or (B) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Basic Documents to which the Servicer is a party, which might materially and adversely affect the performance by the Servicer of its obligations under, or the validity or enforceability of, the Basic Documents or the Certificates.
(h) The favorable opinions Underwriter shall have received an opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., special counsel for to the Company, which opinion may rely on, and assume the General Counsel accuracy of, the opinion described in paragraph (e) above, dated the Closing Date, to the effect that:
(i) The Offered Certificates have been duly authorized by all necessary corporate action of the Company and, when executed, authenticated and delivered in the manner contemplated by the Pooling Agreement and paid for pursuant to this Agreement, will be validly issued and outstanding, and entitled to the benefits provided by the Pooling Agreement;
(ii) The Mortgage Loan Purchase Agreement constitutes the valid, legal and binding agreement of and the Company, enforceable against and the Company in form accordance with its terms, subject to certain qualifications;
(iii) Assuming that the Pooling Agreement and substance satisfactory this Agreement have been duly authorized, executed and delivered by the other parties thereto, the Pooling Agreement and this Agreement constitute the valid, legal and binding agreements of the Company and the Servicer, enforceable against the Company and the Servicer in accordance with their terms, subject to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities certain qualifications;
(iv) The Pooling Agreement is not required to be purchased qualified under the Trust Indenture Act of 1939, as amended, and the trust created by the Pooling Agreement is not required to be registered under the Investment Company Act of 1940, as amended;
(v) Each of the Class A and Class B-1 Certificates, on the date of original issuance thereof, will be a "mortgage related security" as such Date term is defined in Section 3(a)(41) of Delivery the Exchange Act;
(vi) The Registration Statement (which for purposes of such opinion shall not be deemed to include any exhibits filed therewith or any documents incorporated therein by reference) has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued; and
(vii) The statements (A) under the headings (1) "SUMMARY OF PROSPECTUS--ERISA LIMITATIONS" and otherwise to "--TAX STATUS," (2) "FEDERAL INCOME TAX CONSEQUENCES" and (3) "ERISA CONSIDERATIONS" in the same effect as Basic Prospectus and (B) under the opinions required by Section 6(bheadings (1) hereof."SUMMARY OF TERMS--Federal Income Tax Consequences" and "--ERISA Considerations," (2) "RISK FACTORS--Tax Consequences of Residual
Appears in 1 contract
Sources: Underwriting Agreement (Ba Residential Securities Inc)
Conditions to the Obligations of the Underwriter. The Your obligation of the Underwriter hereunder to purchase the Securities Designated Notes shall be subject to the accuracy of the representations and warranties on the part of the Company and the Sponsor contained herein as of the time date hereof, as of the execution date of this Agreement, the effectiveness of any amendment to the Registration Statement filed prior to the Closing Time Date and each Date as of Delivery, as the case may beClosing Date, to the accuracy of the statements of the Company and the Sponsor made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company and the Sponsor of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has shall have become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting Statement, as amended from time to its use time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any Act. Any request on the part of the Commission for inclusion of additional information from in the Company Registration Statement or the Base Prospectus shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(bwith.
(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter You shall have received (i) the from Dewey Ballantine LLP, your counsel, a favorable opinion, dated as of the Closing Time, of ▇▇▇date▇ ▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPe, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion effect that:
(i) No facts have come to the attention of such counsel may relywhich lead them to believe that the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical data contained therein, as to all matters governed by which we are not called upon to express any belief), at the laws time the Registration Statement became effective, contained any untrue statement of jurisdictions a material fact or omitted to state a material fact necessary in order to make the statements therein not misleading, or that the Final Prospectus (other than the law financial statements and other financial and statistical data contained therein, as to which we are not called upon to express any belief), as of its date and as of the date hereof, contained or contains any untrue statement of a material fact, or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may: (1) express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Trust Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase Agreement and the Insurance and Indemnity Agreement; (2) assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company; (3) qualify such opinion only as to the federal laws of the United States of America, the laws of the State of New York and the federal general corporation law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel shall also confirm that you may also state thatrely, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company on and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing TimeDate, on any opinion or opinions of such counsel submitted to the rating agency or agencies rating the Designated Notes as if addressed to you and dated the Closing Date.
(c) You shall have received from Dewey Ballantine LLP, your counsel, a favorable opinion, dat▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇te, to the effect that (i) there has been no Material Adverse Change since for federal income tax purposes the date hereof, Designated Notes will be treated as indebtedness and (ii) the Trust will not be treated as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool;
(d) You shall have received a certificate, signed by the president, a senior vice president or a vice president of the Company and the Sponsor, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Purchase Agreement, the Trust Agreement, the Indenture, the Sale and Servicing Agreement, the Insurance and Indemnity Agreement, and this Agreement and that, to the best of his or her knowledge based upon reasonable investigation:
a. the representations and warranties of the Company and the Sponsor in Section 1 hereof are true and correct with the same force and effect as though expressly made at and this Agreement, as of the Closing TimeDate, (iii) and in the Sale and Servicing Agreement, the Trust Agreement, the Purchase Agreement, and the Insurance and Indemnity Agreement and in all related agreements, as of the date specified in such agreements, are true and correct, and the Company and the Sponsor 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 TimeDate;
b. there are no actions, suits or proceedings pending, or to the best of such officer's knowledge, threatened against or affecting the Company or the Sponsor which if adversely determined, individually or in the aggregate, would be reasonably likely to adversely affect the Company's or the Sponsor's obligations under the Sale and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Servicing Agreement, the Underwriter shall have received from Ernst & Young LLP a letterInsurance and Indemnity Agreement, dated as of such datethe Purchase Agreement or this Agreement in any material way or the Sponsor's obligations under the Trust Agreement in any material way; and no merger, in form and substance satisfactory to the Underwriter containing statements and information liquidation, dissolution or bankruptcy of the type ordinarily included in accountants' "comfort letters" to Company or the Underwriter with respect to Sponsor is pending or contemplated;
c. the financial statements and certain financial information contained in the Registration StatementStatement and the Final Prospectus relating to the Company and the Sponsor, the General Disclosure Package Mortgage Loans or the servicing procedures of it or its affiliates or subservicer is true and accurate in all material respects and nothing has come to his or her attention that would lead such officer to believe that the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP Registration Statement or Final Prospectus includes any untrue statement of a letter, dated as of Closing Time, material fact or omits to the effect that they reaffirm state a material fact necessary to make the statements made therein not misleading;
d. the information set forth in the letter Schedule of Mortgage Loans required to be furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus Purchase Agreement and the General Disclosure PackageSale and Servicing Agreement is true and correct in all material respects;
e. there has been no amendment or other document filed affecting the certificate of incorporation or bylaws of the Company or the certificate of formation or operating agreement of the Sponsor, in each case since _______, 200_, and no such amendment has been authorized. No event has occurred since _______, 200_, which has affected the good standing of the Company under the laws of the State of New York or the good standing of the Sponsor under the laws of the State of Delaware;
f. there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties business or results of operations of the Company Company, the Sponsor and its subsidiaries subsidiaries, taken as a whole, whether from _______, 200_.
g. on or prior to the Closing Date, there has been no downgrading, nor has any notice been given of (A) any intended or potential downgrading or (B) any review or possible changes in rating the direction of which has not arising in the ordinary course of business, thatbeen indicated, in the reasonable judgment rating, if any, accorded the Company or its affiliates or in any rating accorded any securities of the UnderwriterCompany, makes it impracticable to market if any, by any "nationally recognized statistical rating organization," as such term is defined for purposes of the Securities 1933 Act;
h. each person who, as an officer or representative of the Company or the Sponsor, signed or signs the Registration Statement, the Sale and Servicing Agreement, the Trust Agreement, the Insurance and Indemnity Agreement, this Agreement, the Purchase Agreement or any other document delivered pursuant hereto, on the terms date of such execution, or on the Closing Date, as the case may be, in connection with the transactions described in the Sale and Servicing Agreement, the Trust Agreement, the Insurance and Indemnity Agreement, the Purchase Agreement and this Agreement was, at the respective times of such signing and delivery, and is now, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents are their genuine signatures; and
i. no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's or the Sponsor's knowledge, threatened. The Company and the Sponsor shall attach to such certificate a true and correct copy of its certificate of incorporation or certificate of formation, as appropriate, and bylaws or operating agreement, as appropriate, which are in full force and effect on the date of such certificate and a certified true copy of the resolutions of its Board of Directors or members, as appropriate, with respect to the transactions contemplated herein.
(e) You shall have received from Tobin & Tobin, counsel to the Company, an opinion, dated the C▇▇▇▇▇g D▇▇▇, to the effect that:
(i) Each of the Company and the Sponsor has been duly organized and is validly existing as a corporation (with respect to the Company) or a limited liability company (with respect to the Sponsor) in good standing under the laws of its state of formation and is qualified to do business in each state necessary to enable it to perform its obligations under the Sale and Servicing Agreement, this Agreement, the Indenture, the Purchase Agreement, the Trust Agreement and the Insurance and Indemnity Agreement and has all power and authority necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement, the Purchase Agreement and the Insurance and Indemnity Agreement;
(ii) To the best knowledge of such counsel, there are no actions, proceedings or investigations pending or threatened against or affecting the Company or the Sponsor before or by any court, arbitrator, administrative agency or other governmental authority reasonably likely to be adversely determined that would materially and adversely affect the ability of the Company or the Sponsor to carry out the transactions contemplated in this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement, the Purchase Agreement or the Insurance and Indemnity Agreement;
(iii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Company or the Sponsor of the transactions contemplated herein, except such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Designated Notes and except any recordation of the assignments of the Mortgage Loans to the Trustee pursuant to the Sale and Servicing Agreement that have not yet been completed;
(iv) The Company is not in violation of its certificate of incorporation or by-laws, the Sponsor is not in violation of its certificate of formation or operating agreement, neither the Company nor the Sponsor is in default under any agreement, indenture or instrument the effect of which violation or default would be material to the Company or the Sponsor, and neither the issuance and sale of the Designated Notes, nor the execution or delivery of or performance under this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement, the Purchase Agreement or the Insurance and Indemnity Agreement, nor the consummation of any other of the transactions contemplated herein or therein will conflict with or result in a breach or violation of any term or provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, the certificate of incorporation or by-laws of the Company, the certificate of formation or operating agreement of the Sponsor, or, to the knowledge of such counsel, any indenture or other agreement or instrument to which the Company or the Sponsor or any of its affiliates is a party or by which it or any of them is bound, or any New York or federal statute or regulation applicable to the Company or the Sponsor or any of its affiliates or, to the knowledge of such counsel, any order of any New York or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the Sponsor or any of its affiliates;
(v) Each of the Company and the Sponsor possesses all material licenses, certificates, authorities or permits issued by the appropriate State, Federal or foreign regulatory agencies or bodies necessary to conduct the business now conducted by it and as described in the Final Prospectus, and neither the Company nor the Sponsor has received notice of any proceedings relating to the revocation or modification of any such license, certificates, authority or permit which if decided adversely to the Company or the Sponsor would, singly or in the aggregate, materially and adversely affect the conduct of its business, operations or financial condition.
(vi) The Sale and Servicing Agreement, this Agreement, the Indenture, the Purchase Agreement and the Insurance and Indemnity Agreement have been duly authorized, executed and delivered by the Company and the Sponsor and constitute legal, valid and binding agreements of the Company and the Sponsor, enforceable against the Company and the Sponsor in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law;
(vii) The Trust Agreement has been duly authorized, executed and delivered by the Sponsor and constitutes a legal, valid and binding agreement of the Sponsor enforceable against the Sponsor in accordance with its terms, subject as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles or equity, regardless of whether enforcement is sought in a proceeding in equity or at law;
(viii) The direction by the Sponsor to the Trustee to execute, authenticate and deliver the Designated Notes has been duly authorized by the Sponsor, and the Designated Notes, when executed and authenticated in the manner contemplated in the Indenture, will be validly issued and outstanding and entitled to the benefits of the Indenture;
(ix) The Designated Notes and the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus. At ; and
(x) Neither the Closing Timetransfer of the Mortgage Loans to the Trust, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each pledge of the signed Lock-Up Agreements referred to in Section 5(j) hereofMortgage Loans, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all issuance or any portion sale of the Option SecuritiesDesignated Notes nor the execution, delivery or performance by the Company and the Sponsor of this Agreement, the representations Trust Agreement, the Insurance and warranties Indemnity Agreement, the Sale and Servicing Agreement or the Purchase Agreement (A) conflicts or will conflict with or results or will result in a breach of, or constitutes or will constitute a default under, (i) any term or provision of the certificate of incorporation or bylaws of the Company contained herein and or the statements in certificate of formation or operating agreement of the Sponsor; (ii) any certificates furnished by term or provision of any material agreement, contract, instrument or indenture, to which the Company or the Sponsor is a party or is bound and known to such counsel; or (iii) any subsidiary order, judgment, writ, injunction or decree of any court or governmental agency or body or other tribunal having jurisdiction over the Company or the Sponsor and known to such counsel; or (B) results in, or will result in the creation or imposition of any lien, charge or encumbrance upon the Trust or upon the Designated Notes, except as otherwise contemplated by the Indenture.
(xi) The Registration Statement has become effective under the 1933 Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Company hereunder shall be true Registration Statement has been issued and correct not withdrawn and no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Final Prospectus and each amendment or supplement thereto and the Indenture, as of each Date of Delivery and, at their respective effective or issue dates (other than the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company financial and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.statistical informa
Appears in 1 contract
Sources: Underwriting Agreement (Greenpoint Mortgage Securities Inc/)
Conditions to the Obligations of the Underwriter. The Underwriter's obligation of the Underwriter to purchase the Securities Certificates in the respective amounts set forth opposite their names on Schedule I attached hereto shall be subject to the accuracy following additional conditions:
6.1 No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened by the Commission or by any authority administering any state securities or Blue Sky law; and the Prospectus Supplement 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) under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Company, the Seller or any of their respective affiliates the effect of which, in any case, is, in that Underwriter's reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Registration Statement and the Prospectus. All actions required to be taken and all filings required to be made by the Issuer under the Act and the Exchange Act prior to the sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to the Underwriter a certificate, dated the Closing Date, of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement, the Trust Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties on the part of the Company contained herein as of in this Agreement and in the time of Pooling and Servicing Agreement are true and correct in all material respects;
(b) the execution of this AgreementCompany has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time Date;
(c) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall has been issued and no proceedings for that purpose have been issued under instituted or are contemplated;
(d) subsequent to the 1933 Act respective dates as of which information is given in the Prospectus, and except as set forth or contemplated in the Prospectus, there has not been any material adverse change in the general affairs, business, key personnel, capitalization, financial condition or results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no actions, suits or proceedings therefor initiated pending before any court or threatened by the Commissiongovernmental agency, and any request on the part of the Commission for additional information from authority or body or, to their knowledge, threatened, against the Company shall or the Seller that could reasonably have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance a material adverse affect on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of Company or the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and Seller or (ii) the favorable opiniontransactions contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Certificates have been rated in one of the four highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 The Company shall have delivered to the Underwriter a certificate, dated as of the Closing TimeDate, of the General Counsel of the CompanyPresident, with responsibility for the legal affairs an Executive Vice President, a Managing Director or a Director of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth that the signer of such certificate has examined the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement, the Trust Agreement and this Agreement and that, to his or her knowledge after reasonable investigation, the representations and warranties of the Company contained in Exhibit A-3 hereto this Agreement are true and to such further effect as counsel correct in all material respects.
6.5 The Seller shall have delivered to the Underwriter may reasonably request. At a certificate, dated the Closing TimeDate, of the President, a Managing Director or a Director of the Seller to the effect that the signer of such certificate has examined the Mortgage Loan Purchase Agreement and that, to his or her knowledge after reasonable investigation, the Underwriter representations and warranties of the Seller contained in the Mortgage Loan Purchase Agreement are true and correct in all material respects.
6.6 You shall have received the favorable opinion, dated as opinion and letter of the Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York Company and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the CompanySeller, dated as of the Closing Time, Date and substantially to the effect that (i) there has been no Material Adverse Change since set forth in Exhibit A and Exhibit B [NOTE: Exhibit B will be revised to address the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter Definitive Free Writing Prospectus].
6.7 You shall have received from Ernst & Young LLP a lettercounsel for the Underwriter, an opinion dated as of such date, the Closing Date in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter Underwriter.
(i) You shall have received from Ernst Deloitte & Young LLP Touche LLP, certified public accountants, a letter, letter addressed to the Underwriter and dated as of Closing Timethe date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they reaffirm have performed certain specified procedures, all of which have been agreed to by the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of DeliveryUnderwriter, as the case may be, there shall not have been, since the date hereof or since the respective dates as a result of which they determined that certain information is given of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions "The Mortgage Pool" and "Description of the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in Grantor Trust Certificates" agrees with the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations records of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course Seller excluding any questions of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. legal interpretation.
(ii) At the Closing TimeDate, Deloitte & Touche LLP and/or any other firm of certified independent public accountants acceptable to you shall have furnished to you a letter, addressed to you, and in form and substance satisfactory to you in all respects, relating to the Securities extent such information is not covered in the letter or letters provided pursuant to Section 6.8(i), to the characteristics of the mortgage loans, as presented in the Prospectus Supplement.
6.9 The Certificates shall have been approved for listing on the New York Stock Exchangerated "AAA" by [each of] [Standard & Poor's Ratings Services] and [Fitch Ratings] and "Aaa" by [▇▇▇▇▇'▇ Investors Service, subject only to official notice of issuance. The Underwriter Inc.].
6.10 You shall have received each the opinion of the signed Lock-Up Agreements referred to in Section 5(j) hereof[Trustee's Counsel], and each such Lock-Up Agreement shall be in full force and effect at dated the Closing Time and each Date of DeliveryDate, as substantially to the case may be. In the event that the Underwriter exercises the option provided effect set forth in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter Exhibit C.
6.11 You shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, special counsel for to the Company, and the General Counsel of from in-house counsel to the Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch Ratings] and [▇▇▇▇▇'▇ Investors Service, Inc.]. The Company will furnish you with conformed copies of the above opinions, certificates, letters and documents as you reasonably request. If any of the conditions specified in this Article 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter, dated this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such Date of Delivery, relating cancellation shall be given to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required Company in writing, or by Section 6(b) hereoftelephone or telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (MortgageIT Securities Corp.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities hereunder shall be subject subject, in its discretion, to the accuracy of the condition that all representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the other statements of the Company made in any certificates delivered by and the Selling Stockholders herein are, at and as of the date hereof and the Time of Delivery, true and correct, the condition that the Company to and the Underwriter pursuant to the provisions hereof, to the performance by the Company of its Selling Stockholders shall have performed all their obligations hereunder theretofore to be performed, and to the following additional conditions: :
(a) The Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel for the Underwriter, such opinion or opinions, dated the Time of Delivery and addressed to the Underwriter, with respect to the issuance and sale of the Shares and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(b) ▇▇▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory shall have furnished to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinionyou their written opinions, dated as the Time of Delivery, substantially in the Closing Time, form of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of Annex C hereto.
(c) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special regulatory counsel to the Company, shall have furnished to you their written opinion, dated the Time of Delivery, substantially in the form of Annex D hereto.
(d) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel to AP Charter Holdings (Sub II), LLC, Red Bird, L.P., Blue Bird, L.P., Green Bird, L.P. and Permal Apollo Value Investment Fund, Ltd. (collectively, the “Apollo Selling Stockholders”), shall have furnished to you their written opinion with respect to the Apollo Selling Stockholders, dated the Time of Delivery, substantially in the form of Annex E hereto.
(e) Walkers, counsel to Red Bird, L.P., Blue Bird, L.P. and Green Bird, L.P., each a Cayman Islands entity (collectively, the “Cayman Island Selling Stockholders”), and Permal Apollo Value Investment Fund, Ltd., a British Virgin Islands entity (the “BVI Selling Stockholder”), shall have furnished to you their written opinions with respect to the Cayman Island Selling Stockholders and the BVI Selling Stockholder, each dated the Time of Delivery, substantially in the form of Annexes F and G hereto, respectively.
(f) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to Oaktree Opportunities Investments, L.P. (the “Oaktree Selling Stockholder”), shall have furnished to you their written opinion with respect to the Oaktree Selling Stockholder, dated the Time of Delivery, in form and substance satisfactory to you.
(g) At the Time of Delivery, the Shares shall have been approved for listing on NASDAQ.
(h) On the Underwriterdate of the Time of Sale Information and also at the Time of Delivery, KPMG LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers you.
(i) (i) None of the Company and or any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Time of Sale Information and certificates 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 court or governmental action, order or decree, otherwise than as set forth or contemplated in each of public officials. the Registration Statement, the Time of Sale Information and the Prospectus, and (ii) since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus (for clarification purposes, this excludes any amendment or supplement to the each of the Registration Statement, the Time of Sale Information and the Prospectus on or after the date of this Agreement) there shall not have been any change in the capital stock, limited liability company interests, partnership interests or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' or members' equity, or results of operations of the Company or any of its subsidiaries, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus, 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 offering or the sale or delivery of the Shares on the terms and in the manner contemplated in this Agreement and in the Time of Sale Information and the Prospectus.
(j) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Company or any debt securities or preferred stock issued or guaranteed by the Company by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Company or of any debt securities or preferred stock issued or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(k) The Shares shall be eligible for clearance and settlement through DTC.
(l) At the Time of Delivery, the Underwriter shall have received a written certificate executed by the Chairman of the Board, Chief Executive Officer or President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing TimeTime of Delivery, certifying as to the matters set forth in subsections (g) and (h) of this Section 8, and further to the effect that that:
(i) there has been no Material Adverse Change since the representations, warranties and covenants of the Company set forth herein were true and correct as of the date hereof, (ii) the representations hereof and warranties in Section 1 hereof are true and correct as of the Time of Delivery with the same force and effect as though expressly made at on and as of the Closing TimeTime of Delivery;
(ii) the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of the Registration Statement is in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act is pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus has been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information have been complied with; and
(iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing TimeTime of Delivery.
(m) At the Time of Delivery, the Underwriter shall have received a written certificate executed by a senior officer of each Selling Stockholder, dated as of the Time of Delivery, certifying to:
(i) the representations, warranties and covenants of such Selling Stockholder set forth herein were true and correct as of the date hereof and are true and correct as of the Time of Delivery with the same force and effect as though expressly made on and as of the Time of Delivery; and
(ivii) such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Time of Delivery.
(n) The Underwriter shall have received a Form W-9 or Form W-8, as applicable, from each Selling Stockholder.
(o) The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued shall be in effect, and no proceedings proceeding for that purpose have been instituted such purpose, pursuant to Rule 401(g)(2) or are pursuant to Section 8A under the Securities Act shall be pending before or are contemplated threatened by the Commission. At ; the time Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the execution Underwriter.
(p) On or before the Time of this AgreementDelivery, the Underwriter and counsel for the Underwriter shall have received from Ernst & Young LLP a lettersuch information, dated documents and opinions as they may reasonably require for the purposes of such date, in form enabling them to pass upon the offer and substance satisfactory to the Underwriter containing statements and information sale of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated Shares as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwisecontemplated herein, or in order to evidence the earnings, business, prospects, properties or results accuracy of operations any of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties warranties, or the satisfaction of any of the Company contained conditions or agreements, herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofcontained.
Appears in 1 contract
Sources: Underwriting Agreement (Charter Communications, Inc. /Mo/)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 in lieu thereof) shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreementdate hereof, the Closing Applicable Time and each the Closing Date of Delivery, as the case may bepursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The :
(a) On the Closing Date, (i) the Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A , (ii) each preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). , (iii) any material required to be filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations, and (v) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) At the Closing Timetime of execution of this Agreement, the Underwriter and the Forward Sellers shall have received (i) from PricewaterhouseCoopers llp a letter, addressed to the favorable opinionUnderwriter, the Forward Sellers and the Forward Counterparties, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Companydate hereof, in form and substance satisfactory to counsel for the UnderwriterUnderwriter and the Forward Sellers, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel that:
(i) they are independent accountants with respect to the Underwriter may reasonably request, Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the favorable opinion, dated as consolidated financial statements and supporting schedules of the Closing Time, Company included or incorporated by reference in the Registration Statement and the Prospectus and covered by their opinions therein comply in form in all material respects with the applicable accounting requirements of the General Counsel 1933 Act and the 1934 Act, and the related published rules and regulations; (iii) it is their opinion that the financial statements of the properties acquired or proposed to be acquired by the Company included in or incorporated by reference in the Company’s Registration Statement and covered by their opinions therein comply as to form with the applicable financial statement requirements of Rule 3-14 of the 1934 Act with respect to real estate operations acquired or to be acquired; (iv) they have performed limited procedures, with responsibility for not constituting an audit, including a reading of the legal affairs latest available unaudited interim consolidated financial statements of the Company and its subsidiaries, a reading of the minute books of the Company and its subsidiaries, inquiries of certain officials of the Company and its subsidiaries who have responsibility for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that (A) the unaudited interim consolidated financial statements and financial statement schedules, if any, of the Company included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the 1934 Act and the related published rules and regulations thereunder or that any material modification should be made to the unaudited condensed interim financial statements included in or incorporated by reference in the Registration Statement and the Prospectus for them to be in conformity with GAAP, (B) the unaudited pro forma condensed financial statements included in or incorporated by reference in the Company’s Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X under the 1933 Act or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements, (C) the information included or incorporated by reference in the Registration Statement and the applicable Prospectus under the caption “Selected Consolidated Financial Data” did not conform in all material respects with the disclosure requirements of item 301 of Regulation S-K, or (D) at a specified date not more than three days prior to the date hereof, there has been any change in the capital shares of the Company or increase in the consolidated total debt of the Company or any decrease in total consolidated shareholders’ equity of the Company, as compared with the amounts shown in the most recent consolidated balance sheet included or incorporated by reference in the Registration Statement and the Prospectus or, during the period from the date of the most recent consolidated statement of operations of the Company included or incorporated by reference in the Registration Statement and the Prospectus to a specified date not more than three days prior to the date hereof, there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated revenues, or in consolidated net income of the Company, except in all instances for changes, increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (v) in addition to the audit referred to in their opinions and the limited procedures referred to in clause (iv) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included or incorporated by reference in the Registration Statement and the Prospectus and which are specified by you, and have 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.
(c) At the time of execution of this Agreement, the Underwriter and the Forward Sellers shall have received from KPMG llp a letter, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated the date of such execution, in form and substance satisfactory to counsel for you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited financial statements of IRRETI included in the Company’s Current Report on Form 8-K, as filed with the Commission on December 4, 2006 and such other information included or incorporated by reference in the Prospectus as may reasonably be requested by the Underwriter and the Forward Sellers.
(d) On the Closing Date, the Underwriter and the Forward Sellers shall have received from PricewaterhouseCoopers llp a letter, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated the Closing Date, to the effect set forth in Exhibit A-3 hereto and to that such further effect as counsel to the Underwriter may reasonably request. At the Closing Timeaccountants reaffirm, the Underwriter shall have received the favorable opinion, dated as of the Closing TimeDate, and as though made on the Closing Date, the statements made in the letter furnished by such accountants pursuant to paragraph (b) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPthis Section 7, counsel for except that the specified date will be a date not more than three days prior to the Closing Date.
(e) On the Closing Date, the Underwriter and the Forward Sellers shall have received from KPMG llp a letter, addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York Forward Sellers and the federal law of Forward Counterparties, dated the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have reliedClosing Date, to the extent they deem propereffect that such accountants reaffirm, upon certificates as of officers the Closing Date, and as though made on the Closing Date, the statements made in the letter furnished by such accountants pursuant to paragraph (c) of this Section 7.
(f) On the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any material adverse change or any development that is reasonably likely to involve a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and certificates of public officials. The Underwriter you shall have received a certificate of the Chairman and Chief Executive Officer or the President or a Vice President of and Chief Operating Officer and the Company and of the chief financial or chief accounting officer Chief Financial Officer of the Company, dated as of the Closing TimeDate, to the effect that (i) there has been no Material Adverse Change since the date hereofsuch material adverse change or development, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing TimeDate, and (iii) the conditions precedent set forth in this Section 7 have been satisfied or waived.
(g) On the Closing Date, the Underwriter and the Forward Sellers shall have received from B▇▇▇▇ & H▇▇▇▇▇▇▇▇ llp, counsel for the Company, an opinion, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated as of the Closing Date, to the effect that:
(i) The Company has complied with been duly organized and is validly existing as a corporation in good standing under the laws of the State of Ohio.
(ii) The Company has all agreements requisite corporate power and satisfied all conditions authority to own, lease and operate its properties and to conduct its business as described in the Prospectus.
(iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its part to be performed or satisfied at or prior to the Closing Time, and subsidiaries considered as one enterprise.
(iv) If the Company has one or more significant subsidiaries, as defined in Rule 405 of the 1933 Act (each a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and effect under the laws of the jurisdiction of its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect in each jurisdiction in which it owns real property, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise.
(v) The outstanding capital shares of the Company, including the Securities (other than any Securities to be sold by the Company pursuant to Section 13) have been duly authorized, validly issued, and are fully paid and non-assessable. All of the issued and outstanding capital stock of the Company’s subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of such counsel’s knowledge, are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(vi) Any Securities to be sold by the Company pursuant to Section 13 have been duly and validly authorized by all necessary corporate action and such Securities have been duly authorized for issuance and sale pursuant to this Agreement and such Securities, when issued and delivered pursuant to this Agreement against payment of the consideration therefor specified herein will be validly issued, fully paid and non-assessable.
(vii) None of the Securities will have been issued or sold in violation of or be subject to any preemptive or other similar rights of any shareholder of the Company arising by operation of law or under the Articles of Incorporation or Code of Regulations or, to the best of their knowledge, otherwise.
(viii) The Common Shares, if any, to be purchased by the Forward Counterparties pursuant to the Forward Agreements from the Company have been duly authorized by the Company for issuance and sale pursuant to the Forward Agreements and, when issued and delivered by the Company to the Forward Counterparties pursuant to the Forward Agreements against payment of the consideration set forth in the Forward Agreements, will be validly issued, fully paid and non-assessable and will not have been issued or sold in violation of or be subject to any preemptive or other similar rights of any shareholder of the Company arising by operation of law or under the Articles of Incorporation or Code of Regulations.
(ix) Each of the Forward Agreements has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, re-organization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(x) The Registration Statement is effective under the 1933 Act and, to the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no under the 1933 Act or proceedings for that purpose have been instituted therefor initiated or are pending or are contemplated threatened by the Commission. At .
(xi) The Registration Statement and the time of Prospectus (other than the execution of this Agreementfinancial statements, related schedules and other financial and statistical data included or incorporated by reference in the Underwriter shall have received from Ernst & Young LLP a letterRegistration Statement or the Prospectus, dated as to which no opinion need be rendered) as of such datetheir respective effective or issue dates, comply as to form in form all material respects with the requirements for registration statements on Form S-3 under the 1933 Act and substance satisfactory the 1933 Act Regulations.
(xii) Each document filed pursuant to the Underwriter containing statements 1934 Act (other than the financial statements, related schedules and information of other financial and statistical data included or incorporated by reference therein, as to which no opinion need be rendered) and incorporated or deemed to be incorporated by reference in the type ordinarily included Prospectus complied when so filed as to form in accountants' "comfort letters" all material respects with the 1934 Act and the 1934 Act Regulations.
(xiii) The Securities conform in all material respects to the Underwriter with respect to the financial statements and certain financial information relating thereto contained in the Prospectus.
(xiv) No facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.St
Appears in 1 contract
Sources: Underwriting Agreement (Developers Diversified Realty Corp)
Conditions to the Obligations of the Underwriter. The Underwriter's obligation of the Underwriter to purchase the Securities Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The Registration Statement has become effective and at the Closing Time no :
6.1. No stop order suspending the effectiveness of the Registration Statement or any notice objecting shall be in effect, and no proceedings for that purpose shall be pending or, to its use shall have been issued under the 1933 Act or proceedings therefor initiated or knowledge of the Company, threatened by the Commission, ; and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission in the manner and within the time period required by pursuant to Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information under the Act.
6.2. Since __________, 200_ there shall have been filed and become effective no material adverse change (not in accordance with the requirements ordinary course of Rule 430B)business) in the condition of the Company.
6.3. At The Company shall have delivered to you a certificate, dated the Closing TimeDate, of the President, or the Executive Vice President of the Company to the effect that the signer of such certificate has examined this Agreement, the Underwriter Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects; and
(b) the Company has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
6.4. You shall have received (i) the favorable opinionopinions of Thacher Proffitt & Wood, special counsel for the Company, dated as of the Closing Time, of C▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇ sub▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, tially to the effect set forth in Exhibit A-2 hereto A and to such further effect as Exhibit B.
6.5. You shall have received from counsel to for the Underwriter may reasonably requestUnderwriter, and (ii) the favorable opinion, an opinion dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, Date in form and substance satisfactory to counsel for the Underwriter.
6.6. The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by the Underwriter, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions "Description of the Mortgage Pool", "Pooling and Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the records of the Company excluding any questions of legal interpretation.
6.7. The Certificates shall have been rated "AAA" by [each of] [Standard & Poor's Ratings Services] and [Fitch Ratings] and "Aaa" by [Moody's Investors Service, Inc.].
6.8. You shall have recei▇▇▇ ▇▇▇ opinion of [Trustee's Counsel], dated the Closing Date, substantially to the effe▇▇ ▇▇▇ forth in Exhibit A-3 hereto and to such further effect as C.
6.9. You shall have received from Thacher Proffitt & Wood LLP, special counsel to the Underwriter may reasonably request. At the Closing TimeCompany, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of and from ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇l t▇ ▇▇e Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch Ratings] and [Moody's Investors Service, Inc.]. The Company will furnish ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law h conformed copies of the State of New York above opinions, certificates, letters and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar documents as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofyou reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (American Home Mortgage Assets LLC)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase borrow the Underwritten Securities and pay the Loan Fee as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, Execution Time and the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: The :
(i) If the Registration Statement has not become effective and at prior to the Closing Time no stop order suspending Execution Time, unless the effectiveness of Underwriter 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 on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any notice objecting supplement thereto, is required pursuant to its use shall have been issued under Rule 424(b), the 1933 Act or proceedings therefor initiated or threatened by the CommissionProspectus, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been such supplement, will be filed with the Commission in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(ii) without reliance on Rule 424(b)(8) (If, at or subsequent to the Execution time it is necessary for the Registration Statement or a post-effective amendment providing thereto to be declared effective, the registration statement or such information post-effective amendment shall have become effective no later than such date and time as consented to in writing by you, and all filings, if any, required by Rules 424 and 430A Under the Act shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter timely made.
(b) The Company shall have received (i) the favorable opinion, dated as of the Closing Time, of requested and caused Irell & M▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, covering such matters as are typically provided in opinions delivered in connection with underwritten equity offerings, in form and substance reasonably satisfactory to you.
(c) C▇▇▇, Raywid & B▇▇▇▇▇▇▇▇ L.L.P., special regulatory counsel for to the Company, shall have furnished to you their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to you, to the effect that:
(i) The issue and sale of the Underwritten Securities and the compliance by the Company with the Share Lending Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Company or any of its subsidiaries or any of their property is subject; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of this Agreement and the Share Lending Agreement and the consummation of the transactions herein and therein contemplated; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in the Prospectus under the caption “Regulation and Legislation” and under the caption “Risk Factors” under the subheading “Risks relating to regulatory and legislative matters,” insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(iv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Company’s and the Company’s subsidiaries’ management, the Company and its subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television, industry, to such counsel’s knowledge, based solely upon its review of the publicly available records of the FCC and upon inquiry of the Company’s and its subsidiaries’ management, during the time the cable systems of the Company and its subsidiaries have been owned by the Company and its subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the FCC relating to the ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its subsidiaries or any cable system of the Company or any of its subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
(d) The General Counsel or Acting General Counsel of the Company, shall have furnished to you his written opinion, dated as of the Closing Date, in form and substance satisfactory to counsel for the Underwriteryou, to the effect that:
(i) Each subsidiary of the Company listed on a schedule attached to such counsel’s opinion (the “Charter Subsidiaries”) has been duly incorporated or formed, as the case may be, and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation; and all the issued shares of capital stock, limited liability company interests or partnership interests, as the case may be, of each Charter Subsidiary are set forth on the books and records of the Company and, except for those Charter Subsidiaries that are general partners, assuming receipt of requisite consideration therefor, are fully paid and nonassessable (in the case of corporate entities) and not subject to additional capital contributions (in the case of limited liability company entities and limited partnerships); and, except as otherwise set forth in Exhibit A-2 hereto the Prospectus, and to except for liens not prohibited under the credit agreements listed on such further effect as counsel schedule, all outstanding shares of capital stock of each of the Charter Subsidiaries are owned by the Company, either directly or indirectly or through wholly-owned subsidiaries free and clear of any perfected security interest and, to the Underwriter may reasonably requestknowledge of such counsel, and after due inquiry, any other security interest, claim, lien or encumbrance;
(ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs Each of the Company and its subsidiariesthe Charter Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company, or any of the Company’s subsidiaries is party or of which any property of the Company or any of the Company’s subsidiaries is the subject, of a character required to be disclosed in the Registration Statement, which is not so disclosed, except for such proceedings which are not likely to have, individually or in the aggregate, a Material Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Prospectus, no such proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of the Share Lending Agreement and the consummation of the transactions therein contemplated will not result in a violation of the provisions of the certificate of incorporation or by-laws, or certificate of formation or limited liability company agreement or partnership agreement, as the case may be, of any of the Charter Subsidiaries.
(e) On each Effective Date and also on the Closing Date, KPMG LLP shall have furnished to you a “comfort” letter or letters of the type customarily provided in connection with underwritten equity offerings, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the you;
(f) The Underwriter shall have received the favorable opinionfrom Weil, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Gotshal & ▇▇▇M▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions as are customarily provided by underwriters’ counsel in form connection with the registration of equity securities in underwritten offerings on Form S-1, dated the Closing Date and substance reasonably satisfactory addressed to the Underwriter. In giving such opinion , with respect to the issuance and sale of the Underwritten Securities, the Registration Statement and the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
(g) The Company shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President Company, signed by the Chairman of the Company Board or the President and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Timeor, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection Company’s knowledge, threatened; and
(eiii) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or since otherwise), prospects, earnings, business or properties of the respective Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereto) and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties 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, thatexcept as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Underwritten Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the manner contemplated rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as used for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the Prospectus. At direction of the Closing Time, the possible change.
(k) The Underwritten Securities shall have been approved listed and admitted and authorized for listing trading on the New York Stock ExchangeNasdaq National Market, subject only and satisfactory evidence of such actions shall have been provided to official notice the Underwriter. If any of issuancethe conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Underwriter shall have received each of the signed Lock-Up Agreements referred documents required to in be delivered by this Section 5(j) hereof, and each such Lock-Up Agreement 6 shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇Weil, Gotshal & M▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Deliveryat [ ], relating to on the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein as of the time Execution Time and as of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy of the statements of the Company and the Guarantors made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its their respective obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Final Prospectus, and at any supplement thereto, shall have been filed in the Closing Time manner and within the time period required by Rule 424(b) and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(binstituted or threatened.
(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter The Representatives shall have received (i) the favorable an opinion, dated as of the Closing TimeDate, of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Company, and of J▇▇▇ ▇. ▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇, counsel for Executive Vice President, General Counsel and Secretary of the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and Underwriters.
(iic) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter The Representatives shall have received the favorable opinionfrom Cravath, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Swaine & ▇▇▇▇M▇▇▇▇ LLP, counsel for the UnderwriterUnderwriters, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory addressed to the Underwriter. In giving such opinion Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. .
(d) The Underwriter Representatives shall have received from E▇▇▇▇▇▇ B▇▇▇▇▇ & Green, P.C., special regulatory counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to health regulatory matters in connection with the offer and sale of the Securities.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by a President or a Vice President of the Company and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company and the Guarantors in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, (iii) Date with the same effect as if made on the Closing Date and the Company and each of the Guarantors 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 Time, and Date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s or are pending the Guarantors’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or are otherwise), business prospects, earnings, business affairs of the Company and its subsidiaries, considered as a one enterprise, whether or not arising in the ordinary course of business, except as set forth in or contemplated by in the Commission. Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the time of the execution of this Agreement, the Underwriter Representatives shall have received from Ernst & Young LLP PricewaterhouseCoopers LLP, a letter, letter dated as of such date, which in form and substance satisfactory to the Underwriter Representatives and PricewaterhouseCoopers LLP, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to the Underwriter Underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. Package.
(g) At the Closing TimeDate, the Underwriter Representatives shall have received from Ernst & Young LLP PricewaterhouseCoopers LLP, a letter, letter dated as of Closing Timesuch date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (ef) of this SectionSection 6, except that the specified date dated referred in such letter to shall be a date not more than three business days Business Days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since Date.
(h) Subsequent to the date hereof or since of this Agreement or, if earlier, the respective dates as of which information is given in the Prospectus Registration Statement (exclusive of any amendment thereof) and the General Disclosure PackageFinal Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraphs (f) and (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise), or in the earnings, business, prospects, business or properties 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, thatexcept as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the UnderwriterRepresentatives, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any of the Company's debt securities (other than an announcement with positive implications of possible upgrading).
(j) Substantially concurrently with the Closing Date, all of the 2014 Notes tendered in the Tender Offer on or prior to the Consent Payment Deadline (as such term is defined in the Offer to Purchase), and the related consents, shall have been accepted for purchase by the Company, on the terms and conditions described in the manner contemplated Offer to Purchase and in conformity with the description thereof in the Prospectus. At Disclosure Package and the Final Prospectus (without giving effect to any waivers of conditions thereto not consented to by the Representatives).
(k) Prior to the Closing TimeDate, the Securities Company shall have been approved for listing on furnished to the New York Stock ExchangeRepresentatives such further information, subject only to official notice of issuancecertificates and documents as the Representatives may reasonably request. The Underwriter shall have received each If any of the signed Lock-Up Agreements referred to conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, this Agreement and all obligations of the Underwriters, the Company and the Guarantors, except as provided in Section 5(j) hereof7 and except that Sections 1, 5(k), 8 and each 11 to 20 shall survive any such Lock-Up Agreement shall be termination and remain in full force and effect effect, hereunder may be canceled at, or at any time prior to, the Closing Time and each Date by the Representatives. Notice of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof such cancellation shall be given to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished writing or by the Company telephone or any subsidiary of the Company hereunder facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel Cravath, Swaine & M▇▇▇▇ LLP, counsel for Company. The favorable opinions of the Underwriter, at 8▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ L.L.P.▇▇▇▇, counsel for ▇▇ ▇▇▇▇▇-▇▇▇▇, on the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused K▇▇▇▇▇▇▇ & ▇▇E▇▇▇▇ L.L.P.LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, have furnished to the effect set forth in Exhibit A-2 hereto Representative its opinions dated the Closing Date and to such further effect any settlement date, as counsel applicable, and addressed to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiariesRepresentative, in a form and substance satisfactory to counsel for the Underwriter, reasonably acceptable to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter Representative.
(c) The Company shall have received the favorable opinion, dated as of the Closing Time, of ▇requested and caused M▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Calder (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Cravath, Swaine & ▇▇▇▇M▇▇▇▇ LLP, counsel for the Underwriter, in form such opinion or opinions, dated the Closing Date and substance reasonably satisfactory any settlement date, as applicable, and addressed to the Underwriter. In giving such opinion Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel may rely, such documents as they request for the purpose of enabling them to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, pass upon the opinions of counsel satisfactory such matters.
(e) The Company shall have furnished to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received Representative a certificate of the President or a Vice President of Company, signed by its Chief Executive Officer and the Company and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) used in connection with the Offering, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct on and as of such date with the same force and effect as though expressly if made at on such date and as of the Closing Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and such date;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At Company’s knowledge, threatened; and
(iii) since the time date of the execution most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of this Agreementany supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Underwriter Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have received from Ernst & Young LLP a letterrequested and caused M▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of such the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" Representative.
(g) Subsequent to the Underwriter with respect to the financial statements and certain financial information contained in the Registration StatementExecution Time or, if earlier, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 7 or (ii) any change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in affecting the earnings, business, prospectsmanagement, properties properties, assets, rights, operations, condition (financial or results of operations otherwise) or prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the UnderwriterRepresentative, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and in the manner contemplated in the Prospectus. At Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing TimeDate, and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall have been approved for listing be duly listed subject to notice of issuance on the New York Stock Exchange, subject only to official notice satisfactory evidence of issuance. The Underwriter which shall have received each been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the signed Lock-Up Agreements referred Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in Section 5(j) hereofthe Offering as of such Closing Date or such settlement date, as applicable, and each such Lock-Up Agreement shall be in full force and effect at $10.10 per Unit as set forth on the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion cover of the Option Securities, Prospectus.
(m) No order preventing or suspending the representations and warranties sale of the Company contained herein and the statements Units in any certificates furnished jurisdiction designated by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time Representative pursuant to Section 6(d6(ii) hereof remains true and correct shall have been issued as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the CompanyClosing Date, and the General Counsel no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the Companyconditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance satisfactory to the Representative and counsel for the Underwriter, dated such this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.the
Appears in 1 contract
Sources: Underwriting Agreement (World Quantum Growth Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Firm Units and the Option Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Partnership Parties contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company Partnership Parties made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company Partnership Parties of its their obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus and at any supplement thereto have been filed in the Closing Time manner and within the time period required by Rule 424(b); any material required to be filed by the Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act or and no proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company that purpose shall have been complied with instituted or threatened.
(b) The Partnership shall have requested and caused Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special counsel for the Partnership, and ▇▇▇ ▇. ▇. ▇▇▇▇▇▇, Executive Vice President and General Counsel of the General Partner, to have furnished to the reasonable satisfaction of counsel Underwriter their respective legal opinions, dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, substantially in the form set forth on Exhibits B-1, B-2 and B-3. A prospectus containing In rendering such opinion, such counsel may rely (A) as to matters involving the Rule 430B Information application of laws of any jurisdiction other than the State of Delaware, the State of New York, the State of Texas or the federal laws of the United States, the DGCL, the Delaware LP Act or the Delaware LLC Act, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the General Partner and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Partnership shall have been filed with requested and caused Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP to have furnished to the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At Underwriter its negative assurance letters, dated the Closing TimeDate and any settlement date pursuant to Section 3 hereof, and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter.
(d) The Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the CompanyUnderwriter, in form such opinion or opinions, dated the Closing Date and substance satisfactory any settlement date pursuant to counsel for Section 3 hereof, and addressed to the Underwriter, with respect to the effect set forth in Exhibit A-2 hereto issuance and to such further effect sale of the Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as counsel to the Underwriter may reasonably requestrequire, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(iie) The Partnership shall have furnished to the favorable opinion, dated as Underwriter certificates of the Closing Time, officers of the General Counsel of the CompanyPartner, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At dated the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form Date and substance reasonably satisfactory any settlement date pursuant to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing TimeSection 3 hereof, to the effect that the signers of each such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering of the Units, if any, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Partnership Parties in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing TimeDate and any settlement date pursuant to Section 3 hereof, (iii) with the Company has same effect as if made on the Closing Date and any settlement date pursuant to Section 3 hereof, and the Partnership Parties have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Time, and date hereof;
(ivii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by or, to the Commission. At the time knowledge of the execution Partnership Parties, threatened; and
(iii) since the date of this Agreementthe most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect except as described in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Underwriter shall have received from Ernst & Young LLP a lettercustomary comfort letters dated the date of this Agreement, dated as of such the Closing Date and any settlement date, and addressed to the Underwriter (with executed copies for the Underwriter) in form and substance the forms satisfactory to the Underwriter containing statements and information of Underwriter, which letters shall cover, without limitation, the type ordinarily various financial disclosures included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing TimePackage, the Prospectus and each Permitted Free Writing Prospectus.
(g) The Underwriter shall have received from Ernst & Young PricewaterhouseCoopers LLP customary comfort letters dated the date of this Agreement, the Closing Date and any settlement date, and addressed to the Underwriter (with executed copies for the Underwriter) in the forms satisfactory to the Underwriter, which letters shall cover, without limitation, (i) the statements of revenues and direct operating expenses of the Northwest Products System related to certain pipeline and terminal operations of Chevron Pipe Line included or incorporated by reference in the Registration Statement, the Disclosure Package, the Prospectus and each Permitted Free Writing Prospectus and (ii) the consolidated financial statements of QEP Field Services Company, which contributed its natural gas business to QEPFS, which was acquired by the Partnership pursuant to a letterMembership Interest Purchase Agreement with QEP Field Services Company, dated as of Closing TimeOctober 19, 2014, included or incorporated by reference in the Registration Statement, the Disclosure Package, the Prospectus and each Permitted Free Writing Prospectus. References to the effect that they reaffirm the statements made Prospectus in the letter furnished pursuant to subsection paragraph (ef) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since paragraph (g) above include any supplement thereto at the date hereof or since of the respective letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Prospectus Registration Statement (exclusive of any thereof) and the General Disclosure PackageProspectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraphs (f) and (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the condition, condition (financial or otherwise, or in the earnings, business), prospects, earnings, business or properties or results of operations of the Company and its subsidiaries Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, thatthe effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the Securities offering or delivery of the Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Partnership Entities’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Units to be sold on the terms Closing Date shall have been duly admitted for trading and in quotation on the manner contemplated in the Prospectus. NYSE.
(k) At the Closing Execution Time, the Securities Partnership shall have been approved for listing on furnished to the New York Stock ExchangeUnderwriter a letter substantially in the form of Exhibit A hereto from Tesoro, subject only TRMC, Tesoro Alaska and each officer of and director of the General Partner and addressed to official notice of issuance. the Underwriter.
(l) The Underwriter shall have received each from the Partnership Parties such additional documents and certificates as the Underwriter or counsel for the Underwriter may reasonably request. If any of the signed Lock-Up Agreements referred to conditions specified in this Section 5(j) hereof6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and each such Lock-Up certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in full force form and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that substance to the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, this Agreement and the General Counsel all obligations of the CompanyUnderwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Partnership in form and substance satisfactory writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of counsel for the Underwriter, dated such at ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 2500, Houston, Texas 77002, on the Closing Date of Delivery, relating and any settlement date pursuant to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) 3 hereof.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase accept delivery of and pay for the Securities Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Company Authority contained herein herein, as of the time date hereof and as of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may beDate, to the accuracy in all material respects of the statements of the Company officers and other officials of the Authority made in any certificates delivered by the Company to the Underwriter or other documents furnished pursuant to the provisions hereof, to the performance by the Company Authority of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions: The Registration Statement has become effective and at :
(a) At the Closing Time no stop order suspending Date, the effectiveness of Formation Documents and the Registration Statement District Documents shall be in full force and effect, and shall not have been amended, modified or any notice objecting supplemented, except as may have been agreed to its use in writing by the Underwriter, and there shall have been issued under taken in connection therewith, with the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part issuance of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed Bonds and with the Commission transactions contemplated thereby and by this Purchase Agreement, all such actions as, in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel A Professional Law Corporation, Bond Counsel and Disclosure Counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably requestAuthority, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus and the General Disclosure Package, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., a Professional Corporation, counsel to the Underwriter, shall be necessary and appropriate;
(b) The information contained in the Official Statement will, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant to Section 2(m) hereof, be true, correct and complete in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto pursuant to Section 2(m) hereof, contain 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 the light of the circumstances under which they were made, not misleading;
(c) Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and pay for the CompanyBonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(2) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the status of the Authority or the District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Authority to construct or acquire the improvements as contemplated by the Formation Documents, the District Documents or the Official Statement;
(3) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or the Official Statement, or results in the Preliminary Official Statement or the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(4) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States which, in the judgment of the Underwriter, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Bonds on the terms and in the manner contemplated in the Preliminary Official Statement or the Official Statement;
(5) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction that, in the Underwriter’s reasonable judgment, makes it impracticable for the Underwriter to market the Bonds or enforce contracts for the sale of the Bonds;
(6) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(7) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(8) there shall have been any material adverse change in the levy or collection of the Special Tax that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(9) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
(10) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the General Counsel Trust Indenture Act of 1939, as amended.
(d) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the Companyfollowing documents, in each case satisfactory in form and substance satisfactory to counsel the Underwriter:
(1) The Formation Documents and the District Documents, together with a certificate dated as of the Closing Date of the Secretary of the Board to the effect that each Formation Document is a true, correct and complete copy of the one duly adopted by the Board;
(2) The Official Statement;
(3) An unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the Authority, of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, Bond Counsel for the Authority, in the form attached to the Preliminary Official Statement as Appendix E, and an unqualified letter of such counsel, dated the Closing Date and addressed to the Underwriter, dated such Date of Delivery, relating to the Option Securities effect that such approving opinion addressed to the District may be purchased on such Date of Delivery and otherwise relied upon by the Underwriter to the same extent as if such opinion was addressed to it;
(4) A supplemental opinion or opinions, dated the Closing Date and addressed to the Underwriter, of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, Bond Counsel for the Authority, to the effect that (i) the District Documents have been duly authorized, executed and delivered by the Authority, and, assuming such agreements constitute a valid and binding obligation of the other parties thereto, constitute the legally valid and binding agreements of the Authority enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and may be subject to general principles of equity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; (iii) the information contained in the Official Statement on the cover and under the captions “INTRODUCTION,” “THE BONDS,” “SECURITY FOR THE BONDS,” “LEGAL MATTERS Tax Matters” and Appendices B and E thereof (except that no opinion or belief need be expressed as to any financial or statistical data contained in the Official Statement), insofar as it purports to summarize or replicate certain provisions of the Law, the Bonds and the Indenture and the exemption from State of California personal income taxes of interest on the Bonds present a fair and accurate summary of such provisions; (iv) the Special Tax has been duly and validly authorized in accordance with the provisions of the Law and, except as the opinions required same may be limited by Section 6(bbankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights, by equitable principles and by the exercise of judicial discretion in appropriate cases, a lien to secure payment of the Special Taxes has been imposed on all nonexempt property in the District, and
(v) hereof.the Prior Bonds have been defeased in accordance with the provisions of the indenture pursuant to which they were issued;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter hereunder, as to purchase the Securities to be delivered at each Delivery Date, shall be subject subject, in its discretion, to the accuracy of the condition that all representations and warranties on the part of the Company contained herein as of the time of the execution of this Agreement, the Closing Time and each Date of Delivery, as the case may be, to the accuracy of the other statements of the Company made in any certificates delivered by are, at and as of the date hereof and each Delivery Date, true and correct and the condition that the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company shall have performed all of its obligations hereunder theretofor to be performed, and to the following additional conditions: :
(a) The Registration Statement has become effective and at is effective; if the Closing Time no stop order suspending the effectiveness filing of the Registration Statement Prospectus, or any notice objecting supplement thereto, is required pursuant to its use shall have been issued under Rule 424(b), the 1933 Act or proceedings therefor initiated or threatened by the CommissionProspectus, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been such supplement, will be filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information ); no stop order suspending the effectiveness of the Registration Statement shall have been filed issued and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter no proceeding for that purpose shall have received (i) been initiated or, to the favorable opinion, dated as knowledge of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form threatened by the Commission; and substance satisfactory all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) On each Delivery Date, LeClairRyan, A Professional Corporation, counsel for the Underwriter, shall have furnished to you an opinion or opinions, dated such dates, with respect to the effect set forth in Exhibit A-2 hereto issuance and to sale of the Securities on each such further effect Delivery Date, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as counsel to the Underwriter you may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to such counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinionsuch papers and information as they may reasonably request to enable them to pass upon such matters.
(c) On each Delivery Date, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the UnderwriterCompany, shall have furnished to you their written opinion, dated such dates, in form and substance reasonably satisfactory to you, to the Underwriter. In giving such opinion such counsel may relyeffect that:
(i) The Company, the Bank, and the Bank Subsidiaries have been duly incorporated or organized and are validly existing as corporations or limited liability companies, as to all matters governed by applicable, in good standing under the laws of their respective jurisdictions other than of incorporation or organization, with corporate power and authority to own or lease their respective properties and conduct their respective businesses as described in the law Time of the State of New York Sale Prospectus and the federal law of the United States Prospectus; and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer each of the Company, dated the Bank and the Bank Subsidiaries is duly qualified to do business and are in good standing in each jurisdiction in which it owns or leases property or conducts business so as of to require such qualification except where the Closing Time, failure to the effect that (i) there has been no so qualify would not result in a Material Adverse Change since the date hereof, Effect;
(ii) The Company has an authorized capitalization as set forth under the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as captions “Description of the Closing TimeSeries B Preferred Stock” and “Description of Other Capital Stock” in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the description contained in the Prospectus; there are no preemptive or similar rights to subscribe for or to purchase any securities of the Company under the Articles of Incorporation of the Company or under Virginia law; except as described in the Prospectus, to such counsel’s knowledge, there are no warrants or options to purchase any securities of the Company which have been granted by the Company; to such counsel’s knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any rights for or relating to the registration of any securities of the Company; and the form of the certificates evidencing the Securities complies with all formal requirements of Virginia law;
(iii) The Registration Statement has been declared effective under the Company Securities Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has complied with all agreements been made in the manner and satisfied all conditions on its part to be performed or satisfied at or prior within the time period required by Rule 424(b); to the Closing Timeknowledge of such counsel, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings proceeding for that purpose have has been instituted or threatened under the Securities Act;
(iv) The Securities have been duly authorized and, when issued and delivered against payment therefor as provided herein, will be validly issued and fully paid and nonassessable and conform to the description of the Securities contained in the Prospectus, as amended or supplemented;
(v) All outstanding shares of capital stock of the Bank and all of the membership interests of the Bank Subsidiaries owned by the Bank are owned, directly or indirectly, by the Company free and clear of any perfected security interests, claims, liens or encumbrances;
(vi) To such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company, the Bank or any of the Bank Subsidiaries is a party or of which any property or assets of the Company, the Bank or any of the Bank Subsidiaries is subject which, if determined adversely to the Company, the Bank or any of the Bank Subsidiaries, would individually or in the aggregate, have a Material Adverse Effect; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement has been duly authorized, executed and delivered by the Commission. At the time Company and constitutes a legal, valid and binding agreement of the execution Company enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. 1818 (b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy);
(viii) The issue and sale of the Securities and the performance of this Agreement by the Company and the consummation of the other transactions contemplated by this Agreement will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Bank or any of the Bank Subsidiaries pursuant to, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company, the Bank or any of the Bank Subsidiaries is a party or by which the Company, the Bank or any of the Bank Subsidiaries is bound or to which any of the property or assets of the Company, the Bank or any of the Bank Subsidiaries is subject, nor will such action result in any violation of the provisions of the articles of incorporation, bylaws, articles of organization or operating agreement of the Company, the Bank or any of the Bank Subsidiaries, as applicable, or of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, the Bank or any of the Bank Subsidiaries or any of their respective properties;
(ix) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Securities by the Company or the consummation by the Company of the other transactions contemplated by this Agreement, except such as have been obtained under the Underwriter Securities Act, such as may be required under state securities or Blue Sky laws, and such as may be required under the rules of FINRA in connection with the purchase and distribution of the Securities by the Underwriter;
(x) The Registration Statement, the Time of Sale Prospectus and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Delivery Date (other than the financial statements and related schedules and other financial and statistical information included therein and information furnished for use therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations thereunder; and
(xi) The Company has filed an application for the listing of, and all required supporting documents with respect to, the Securities with the Nasdaq Stock Market, Inc., and such counsel received no information stating that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. In rendering such opinions, such counsel may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and the Bank, and public officials. On each Delivery Date, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall also deliver a letter to you stating that nothing has come to their attention which leads them to believe that, as of the effective date of the Registration Statement and as of each Delivery Date, the Registration Statement, the Time of Sale Prospectus or the Prospectus or, as of its date, any further amendment or supplement thereto made by the Company prior to the Delivery Date (in each case, except for the financial statements and the related schedules and other financial and statistical information included therein, as to which such counsel need not address) contains an 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, in the light of the circumstances under which they were made, not misleading. With respect to such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent check or verification.
(d) At 10:00 a.m., Richmond, Virginia time, on the date of this Agreement and also at each Delivery Date, ▇▇▇▇▇▇▇ & Company, LLP shall have received from Ernst & Young LLP furnished to you a letterletter or letters, dated as the respective dates of such datedelivery thereof, in form and substance satisfactory to the Underwriter you, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to the Underwriter underwriters with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the General Disclosure Package Time of Sale Prospectus and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection .
(e) of this Section(i) The Company, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At Bank or the Closing Time and each Date of Delivery, as the case may be, there Bank Subsidiaries shall not have been, sustained since the date hereof of the latest audited financial statements included in the Prospectus, any loss or interference with their respective businesses 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 expressly contemplated in the Time of Sale Prospectus and the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus and there shall not have been any change in the General Disclosure Packagecapital stock or long-term debt of the Company, the Bank or any material adverse of the Bank Subsidiaries or any change, or any development involving a prospective material adverse change, in or affecting the conditiongeneral affairs, management, financial or otherwiseposition, or in the earnings, business, prospects, properties stockholders’ equity or results of operations of the Company Company, the Bank or any of the Bank Subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Prospectus and its subsidiaries taken the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Delivery Date on the terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Stock Market, Inc.; (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq Stock Market, Inc.; (iii) a general moratorium on commercial banking activities declared by either Federal, New York or Virginia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; or (iv) (A) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, or (B) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, including without limitation, as a wholeresult of terrorist activities occurring after the date hereof, whether if the effect of any such event specified in clause (A) or not arising in the ordinary course of business, that(B), in the reasonable judgment of the Underwriter, Underwriter makes it impracticable or inadvisable to market proceed with the public offering or the delivery of the Securities being delivered at such Delivery Date on the terms and in the manner contemplated in the Time of Sale Prospectus or Prospectus. At the Closing Time, the Securities ;
(g) The Company shall have been approved for listing on furnished or caused to be furnished to you copies of agreements between the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received Company and each of the signed Lock-Up Agreements referred executive officers and directors of the Company specified by you, in form and content satisfactory to you, pursuant to which such persons agree not to offer, sell, or contract to sell, or otherwise dispose of, any shares of the Series B Preferred Stock and the Company’s common stock beneficially owned by them, including any shares of Series B Preferred Stock acquired in Section 5(j) hereofthe offering contemplated hereby, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion securities convertible into, or exchangeable for, shares of the Option Securities, Series B Preferred Stock and the Company’s common stock on or before the 90th day after the date of this Agreement without your prior written consent.
(h) The Company shall have furnished or caused to be furnished to you on the date of this Agreement and on the Delivery Date certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company contained herein at and as of the date hereof and the statements in any certificates furnished Delivery Date, as to the performance by the Company of all of its obligations hereunder to be performed at or any subsidiary prior to the Delivery Date, as to the matters set forth in subsections (a) and (e) of this Section 7 and as to such other matters as you may reasonably request.
(i) The Securities shall have been approved for quotation and trading on the Nasdaq Capital Market.
(j) The Company shall have filed with the Commission a registration statement on Form 8-A with respect to the Securities in conformity with the requirements of the Company hereunder shall be true and correct as of each Date of Delivery and, at Exchange Act; no stop order suspending the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as effectiveness of such Date of Delivery. Opinions of Counsel registration statement has been issued and no proceeding for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.that purpose has been initiated or, counsel for to the Company, and the General Counsel knowledge of the Company, threatened by the Commission. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance satisfactory to counsel for the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter, dated . Notice of such Date of Delivery, relating cancellation shall be given to the Option Securities to be purchased on such Date Company in writing or by telephone or facsimile (with written confirmation of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereofreceipt).
Appears in 1 contract
Sources: Underwriting Agreement (Monarch Financial Holdings, Inc.)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Securities Shares shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementClosing Date, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a) hereof and a form of the Prospectus containing information relating to the description of the Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Time Date no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use post-effective amendment thereof shall have been issued under the 1933 Act or and no proceedings therefor shall have been initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b.
(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP shall have furnished to the Underwriter a favorable written opinion, as counsel for to the UnderwriterCompany, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, to the effect that:
(i) Each of the Company and the Bank is validly existing as to all matters governed by a corporation and stock savings bank, respectively, in good standing under the laws of jurisdictions other than its jurisdiction of organization; the law of Company is duly qualified to do business and is in good standing as a foreign corporation in the State of New York York; and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer each of the Company, dated as of the Closing TimeBank and, to the effect that (i) there best of such counsel’s knowledge, each Other Subsidiary has been no Material Adverse Change since all corporate or other power and authority necessary to own or hold its property and conduct its business as described in the date hereof, Prospectus;
(ii) The Company has an authorized capitalization as set forth in the representations Prospectus under the caption “Description of Common Stock;” and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as all of the Closing Timeissued shares of capital stock of each of the Bank and, to the best of such counsel’s knowledge, each Other Subsidiary have been duly authorized and validly issued and are fully paid, non-assessable and are owned directly or indirectly by the Company;
(iii) The Registration Statement was declared effective under the Company has complied Securities Act, the Prospectus was filed with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior the Commission pursuant to the Closing Time, subparagraph of Rule 424(b) of the Securities Act and (iv) 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;
(iv) The Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company prior to such Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the documents incorporated by reference in the Prospectus comply as to form in all material respects with the requirements of the Exchange Act;
(v) To the best of such counsel’s knowledge, there are no contracts or other documents that are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act, that have not been so described or filed, and there are no contracts or other documents that are required by the Exchange Act to be described in or filed as exhibits to any document incorporated by reference in the Prospectus that have not been so described or filed;
(vi) This Agreement has been duly authorized, executed and delivered by the Company;
(vii) The issue and sale of the Shares being delivered on the Closing Date and the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which any of the Company, the Bank or, to the best of such counsel’s knowledge, any Other Subsidiary, is a party or by which the Company, the Bank or, to the best of such counsel’s knowledge, any Other Subsidiary, is bound or to which any of the property or assets of the Company or any Subsidiary is subject, or (B) result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary or any statute 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 Subsidiary or any of their properties or assets; except, with respect to clauses (A) and (B) as such clauses apply to the Other Subsidiaries, for those defaults, breaches or violations that would not reasonably be expected to have a Material Adverse Effect; and, except for the registration of the Shares under the Securities Act and such consents, approvals, authorization, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriter, no consent, approval, authorizations or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby;
(viii) Each of the Company and its Subsidiaries has such authorizations of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including, without limitation, under any applicable environmental laws (each, a “Government Entity”), as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such authorization is valid and in full force and effect and, to such counsel’s knowledge, each of the Company and its Subsidiaries is in compliance in all material respects with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and, to such counsel’s knowledge, no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such authorization; and, to such counsel’s knowledge, such authorizations contain no restrictions that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect.
(ix) To the best of such counsel’s knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right (other than rights which have been waived or satisfied) to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act;
(x) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any Subsidiary is a party or of which any property or assets of the Company or any Subsidiary is the subject which, if determined adversely to the Company or any Subsidiary, might have a Material Adverse Effect (A) any communication from any Governmental Entity (including the Federal Reserve Board and any other bank, insurance or securities regulatory authority) (1) threatening to revoke any permit, license, franchise, certificate of authority or other governmental authorization, or (2) threatening or contemplating revocation or limitation of, or which would have the effect of revoking or limiting, Federal Deposit Insurance Corporation (“FDIC”) deposit insurance, and (B) any order, decree, agreement, memorandum of understanding or similar arrangement with, or a commitment letter, supervisory letter or similar submission to, any Governmental Entity charged with the supervision or regulation of depository institutions or engaged in the insurance of deposits (including the FDIC) or the supervision or regulation of the Company or any Subsidiary, or any notice objecting that such Governmental Entity is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, commitment letter, supervisory letter or similar submission; and, to its use has been issued and the best of such counsel’s knowledge, no such proceedings for that purpose have been instituted are threatened or are pending or are contemplated by Governmental Entities;
(xi) The Company is duly registered as a bank holding company under the Commission. At the time Bank Holding Company Act of 1956, as amended.
(xii) The Bank is a member in good standing of the execution Federal Home Loan Bank of this AgreementNew York, and the deposit accounts of the Bank are insured up to the applicable limits by the FDIC.
(xiii) The Bank is a stock savings bank in good standing under the laws of New York.
(xiv) The statements contained in each of the Prospectus and the Company’s most recent annual report on Form 10-K under the caption “Regulation and Supervision,” and in the Prospectus under the caption “Description of Common Stock,” insofar as they describe federal statutes, rules and regulations and other legal matters constitute a fair summary thereof. In rendering such opinion, such counsel may state that their opinion is limited to matters governed by the Federal laws of the United States of America, the General Corporation Law of the State of Delaware and the laws of the State of New York. Such counsel shall also have furnished to the Underwriter shall have received from Ernst & Young LLP a letterwritten statement, addressed to the Underwriter and dated as of such datethe Closing Date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing TimeUnderwriter, to the effect that they reaffirm (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, and (y) based on the foregoing, no facts have come to the attention of such counsel which lead them to believe that either (I) the Registration Statement, as of the Effective 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 made therein not misleading, or that the Prospectus, as of its date and as of the Closing Date, 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 in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (II) any document incorporated by reference in the letter furnished pursuant Prospectus or any further amendment or supplement to subsection (e) of this Section, except that any such incorporated document made by the specified date referred to shall be a date not more than three business days Company prior to Closing Time. At the Closing Time and each Date of DeliveryDate, when they became effective or were filed with the Commission, as the case may be, there contained, in the case of a registration statement which became effective under the Securities Act, 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 not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The Underwriter shall not have beenreceived from of Weil, since Gotshal & ▇▇▇▇▇▇ LLP, as counsel for the Underwriter, a favorable written opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate, dated the Closing Date, of its Chief Executive Officer or a Senior Vice President and its Chief Financial Officer stating that: (i) the condition set forth in subsection (a) of this Section 7 has been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 1 hereof are accurate, (iii) as of the Closing Date all agreements, conditions and obligations of the Company to be performed or since complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company and the Subsidiaries have not sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Rules and Regulations that have not been included as required and (vi) subsequent to the respective dates as of which information is given in the Prospectus Registration Statement and the General Disclosure Package, Prospectus there has not been any material adverse change, change or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties 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, thatin or affecting (x) the business, in the reasonable judgment condition (financial or otherwise), results of the Underwriteroperations, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Timestockholders’ equity, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance. The Underwriter shall have received each of the signed Lock-Up Agreements referred to in Section 5(j) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all properties or any portion of the Option Securities, the representations and warranties prospects of the Company contained herein and the statements in any certificates furnished by Subsidiaries, individually (with respect to the Company and the Bank) or taken as a whole; (y) the long-term debt or capital stock of the Company or any subsidiary of its Subsidiaries taken as a whole; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(e) The Company hereunder shall be true have requested and correct caused KPMG LLP to have furnished to the Underwriter, as of each Date the date of Delivery and, this Agreement and at the relevant Date of DeliveryClosing Date, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of comfort letters with respect to the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & Bancorp Inc., dated as of the date of this Agreement and as of the Closing Date, addressed to the Underwriter and in form and substance satisfactory to the Underwriter and Underwriter’s Counsel, and stating that nothing caused them to believe that the audited pro forma information of the Company and ▇▇▇▇▇▇ L.L.P.Bancorp Inc. included or incorporated by reference in the Registration Statement does not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X promulgated under the Securities Act or that the pro forma adjustments have not been applied properly to the historical amounts in the compilation of such statements.
(f) Subsequent to the execution and delivery of this Agreement or, counsel for if earlier, the Company, dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the General Counsel Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock or long-term debt of the CompanyCompany or any Subsidiary or any change or development involving a change, whether or not arising from transactions in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.ordinary
Appears in 1 contract
Sources: Underwriting Agreement (New York Community Bancorp Inc)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the time of the execution of this AgreementExecution Time, the Closing Time Date and each Date of Delivery, as the case may beany settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: :
(a) The Registration Statement has become effective Prospectus, and at any supplement thereto, have been filed in the Closing Time manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information from the threatened.
(b) The Company shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner requested and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Schole LLP, counsel for the Company, to have furnished to the Underwriter its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(c) The Company shall have requested and caused Ogier (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in form and substance reasonably satisfactory acceptable to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. .
(d) The Underwriter shall have received from White & Case LLP, counsel for the Underwriter, such opinion or opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriter a certificate of the President or a Vice President of Company, signed by the Company Chief Executive Officer and of the chief principal financial or chief accounting officer of the Company, dated as of the Closing TimeDate or settlement date (as applicable), to the effect that (i) there has been no Material Adverse Change since the date hereofsigners of such certificate have carefully examined the Registration Statement, (ii) each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
i. the representations and warranties of the Company in Section 1 hereof this Agreement are true and correct with the same force and effect as though expressly made at on and as of the Closing Time, Date or settlement date (iiias applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time, and Date or settlement date (iv) as applicable);
ii. no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
iii. since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or are pending or are contemplated by the Commission. At Statutory Prospectus and the time Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Underwriter a certificate signed by a director or officer of the execution Company, dated the Closing Date or settlement date (as applicable), certifying (i) that the Amended and Restated Memorandum and Articles of Association is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreementagreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Underwriter 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.
(g) The Company shall have received from Ernst & Young LLP a letterrequested and caused WithumSmith to have furnished to the Underwriter, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of such datethe Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 4, 2025 (inception) through June 30, 2025, provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
i. in their opinion the audited financial statements, the unaudited financial statements and certain any financial information contained statement schedules included in the Registration Statement, the General Disclosure Package Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
ii. they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. At References to the Closing TimeProspectus in this paragraph (f) include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Delivery, as the case may be, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the General Disclosure PackageProspectus (exclusive of any supplement thereto), there shall not have been any material adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or any change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in affecting the earnings, business, prospectsmanagement, properties properties, assets, rights, operations, condition (financial or results of operations otherwise) or prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, thatexcept as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Underwriter, makes so material and adverse as to make it impracticable impractical or inadvisable to market proceed with the offering or delivery of the Securities on as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and in the manner contemplated in the Prospectus. At Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing TimeDate or settlement date (as applicable), the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(j) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(k) The Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been approved provided to the Underwriter.
(l) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreements, the Founder’s Purchase Agreement, the Unit Subscription Agreement, the Registration Rights Agreement, the Insider Letter and the Administrative Support Agreement.
(m) [Intentionally omitted.]
(n) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Company shall have caused the applicable purchase price for listing on the New York Stock ExchangePrivate Placement Units to be deposited into the Trust Account.
(o) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), subject only and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to official notice the Underwriter and its counsel, this Agreement and all obligations of issuancethe Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Underwriter shall have received each of the signed Lock-Up Agreements referred documents required to in be delivered by this Section 5(j) hereof, and each such Lock-Up Agreement 6 shall be in full force and effect at the Closing Time and each Date of Delivery, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriter shall have received: Officers' Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as office of such Date of Delivery. Opinions of Counsel White & Case LLP, counsel for Company. The favorable opinions of the Underwriter, at ▇▇▇ ▇▇▇▇▇▇ & ▇▇ #▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇, counsel for unless otherwise indicated herein, on the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Closing Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect or settlement date (as the opinions required by Section 6(b) hereofapplicable).
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase and pay for the Securities shall Notes of a related Series subject to this Agreement will be subject to the accuracy of the representations and warranties on the part of the Company contained herein Depositor as of the time date hereof, the date of the execution of this Agreement, Terms Agreement and the Closing Time and each Date of Delivery, as the case may beapplicable Delivery Date, to the accuracy of the statements of the Company Depositor made in any certificates delivered by the Company to the Underwriter pursuant to the provisions hereofthereof, to the performance by the Company Depositor in all material respects of its obligations hereunder and to the following additional conditions: conditions precedent:
(a) Each of the obligations of the Depositor required to be performed by it on or prior to the Closing Date pursuant to the terms of the relevant Operative Agreements shall have been duly performed and complied with and all of the representations and warranties of the Depositor under any of the Operative Agreements shall be true and correct as of the Closing Date or as of another date specified therein and no event shall have occurred which, with notice or the passage of time, would constitute a default under any of such Operative Agreements, and the Underwriter shall have received certificates to the effect of the foregoing, each signed by an authorized officer of the Depositor.
(b) The Underwriter shall have received letters dated the Closing Date, in form and substance reasonably acceptable to the Underwriter and its counsel, prepared by independent certified public accountants, (i) regarding the numerical and statistical information contained in the Prospectus, other than the numerical and statistical information referred to in Section 6(c) hereof, and (ii) relating to certain agreed upon procedures as specified by the Underwriter.
(c) The Underwriter shall have received letters dated the Closing Date, in form and substance reasonably acceptable to the Underwriter and its counsel, prepared by independent certified public accountants, regarding the numerical and statistical information contained in any Issuer Free Writing Prospectus.
(d) The Underwriter shall have received letters (i) dated the Closing Date with respect to the Prospectus Supplement and (ii) dated the date of the Issuer Free Writing Prospectus with respect to the Issuer Free Writing Prospectus, in form and substance acceptable to the Underwriter and its counsel, prepared by independent certified public accountants of the Subservicer regarding the numerical and statistical information contained in the Prospectus and any Free Writing Prospectus regarding such Subservicer’s servicing portfolios.
(e) The Underwriter shall have received the requested number of copies of the Prospectus for the related Series of Notes.
(f) All actions required to be taken and all filings required to be made by the Depositor under the Act prior to the sale of the Notes of the applicable Series shall have been duly taken or made; and prior to the applicable Delivery Date, the Underwriter shall have received confirmation of the effectiveness of the Registration Statement has become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under and no proceedings for that purpose shall have been instituted, or to the 1933 Act knowledge of the Depositor or proceedings therefor initiated or threatened the Underwriter, shall be contemplated by the Commission.
(g) The Notes subject to this Agreement and offered by means of the Registration Statement shall be rated by the applicable rating agencies at the time of issuance as set forth in the Terms Agreement.
(1) The Underwriter shall have received an opinion of counsel or counsels for the Depositor, dated the applicable Delivery Date, substantially to the effect that:
(i) The Depositor has been duly incorporated and is validly existing as a corporation and is in good standing under the laws of the state of Delaware. The Depositor has the corporate power and authority to own its assets and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Operative Agreements to which it is a party;
(ii) Each of the Trust Agreement, Mortgage Loan Purchase Agreement and the Transfer and Servicing Agreement has been duly authorized, executed and delivered by the Depositor and each constitutes a valid and binding agreement of the Depositor, enforceable against the Depositor in accordance with its terms;
(iii) When duly authorized by the Issuer and duly and validly executed and delivered by the Owner Trustee, on behalf of the Issuer, and any request on authenticated by the part Indenture Trustee in accordance with the terms of the Commission for additional information from Indenture, delivered against payment of the Company shall have been complied with purchase price therefor pursuant to this Underwriting Agreement, the Notes will be entitled to the reasonable satisfaction benefits of counsel the Indenture and will constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(iv) Each of the Operative Agreements to which it is a party has been duly authorized, executed and delivered by the Depositor;
(v) The execution and delivery by the Depositor of each of the Underwriting Agreement, the related Terms Agreement, the Trust Agreement, the Mortgage Loan Purchase Agreement and the Transfer and Servicing Agreement and the performance by the Depositor of its obligations thereunder each in accordance with its terms, do not conflict with the certificate of incorporation or by-laws of the Depositor;
(vi) The Issuer is not required to be registered under the Investment Company Act of 1940, as amended;
(vii) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), and complies with the requirements of the TIA and the applicable rules and regulations;
(viii) The Indenture creates a valid security interest in favor of the Indenture Trustee, for the benefit of the holders of the Notes, in the Issuer’s right, title and interest in and to the Underwriter. A prospectus containing Collateral securing the Rule 430B Information shall obligations of the Issuer under the Indenture in which a security interest may be created pursuant to the UCC;
(ix) The Registration Statement has been declared effective under the Act; the Base Prospectus and the Prospectus Supplement have each been filed with pursuant to Rule 424(b) of the Commission Rules and Regulations in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriter shall have received (i) the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter; and, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably requestbest of our knowledge, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Time, the Underwriter shall have received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued under the Act and no proceedings for that purpose have been instituted or are pending or are contemplated threatened by the Commission. At ;
(x) The Free Writing Prospectus required to be filed by the Depositor with the Commission (other than those Free Writing Prospectuses containing Issuer Information prepared by the Underwriter that the Underwriter fails to deliver) has been filed pursuant to Rule 433 of the Rules and Regulations in the manner and within the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of such date, in form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to the Underwriter with respect to the financial statements and certain financial information contained in the period required by Rule 433.
(xi) The Registration Statement, the General Disclosure Package Prospectus and the Prospectus. At December 16 Issuer Free Writing Prospectus (in each case other than (A) the Closing Timefinancial statements, the Underwriter shall have received from Ernst & Young LLP a letterschedules, dated tables and other financial and statistical data included or incorporated by reference therein or omitted therefrom and (B) any documents incorporated by reference, as to which such counsel need not express an opinion), as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time and each Date of Deliverytheir respective effective or issue dates, as the case may be, there shall not have beeneach appeared on its face to be appropriately responsive in all material respects to the applicable requirements of the Act and the Rules and Regulations;
(xii) In the event that the related Prospectus Supplement and the December 16 Issuer Free Writing Prospectus disclose that any class of Notes constitute “mortgage-related securities” within the meaning of Section 3(a)(41) of the Securities Exchange Act of 1934, since the date hereof or since the respective dates as amended, that such class so qualifies assuming that it is rated by a nationally recognized statistical rating organization in one of which its two highest rating categories, for so long as it is so rated;
(xiii) The information is given in the Prospectus and the General Disclosure PackageDecember 16 Issuer Free Writing Prospectus under the captions “Description of the Notes,” “The Mortgage Loan Purchase Agreement and the Transfer and Servicing Agreement” and “The Trust Agreement and the Indenture,” to the extent that it constitutes a summary of certain provisions of the Notes and of the Mortgage Loan Purchase Agreement, the Transfer and Servicing Agreement, the Trust Agreement and the Indenture, has been reviewed by such counsel and is correct in all material respects; the statements contained under the caption “ERISA Considerations,” insofar as such statements describe certain provisions of federal statutes and regulations, have been reviewed by such counsel, and such statements fairly describe such provisions and regulations; and the statements contained under the caption “Federal Income Tax Consequences,” insofar as such statements constitute conclusions of law, are true and correct in all material respects as set forth therein;
(xiv) With respect to the mortgage notes that constitute “instruments,” “general intangibles” or “tangible chattel paper,” as those terms are defined in the UCC, the filing of a Financing Statement on form UCC1 in proper form in the appropriate filing office in the State of Delaware will be effective to perfect the security interest of the Indenture Trustee in the mortgage notes;
(xv) Based on certain representations stated in the opinion:
1. Under current United States federal income tax law, based upon certain financial calculations prepared by the Underwriter concerning the projected payments on the Notes and assuming the accuracy of and compliance with the factual representations, covenants and other provisions of the Transaction Documents without any material adverse changewaiver or modification thereof, although there are no regulations, rulings or judicial precedents addressing the characterization for United States federal income tax purposes of securities having terms substantially the same as those of the Notes, the Notes, other than any Notes or portions of certain Classes of Notes which, at the time of their issuance, the owner of the Ownership Certificate, either directly or indirectly through one or more Qualified REIT Subsidiaries (“QRS”), as defined in Section 856(i) of the Internal Revenue Code, or entities that are disregarded for United States federal income tax purposes that are wholly owned by the related REIT or a related QRS, acquires beneficial ownership thereof (the “Retained Notes”), will be treated as debt for United States federal income tax purposes;
2. The Issuer will not be subject to an entity level tax for United States federal income tax purposes; and
3. If any development involving Retained Note is subsequently sold or transferred to a prospective material adverse change, in taxable REIT subsidiary or a party unrelated to the condition, financial or otherwise, or in the earnings, business, prospects, properties or results of operations beneficial owner of the Company and its subsidiaries taken Ownership Certificate, such Retained Note will be treated as a whole, whether or not arising in the ordinary course of business, that, in the reasonable judgment debt for United States federal income tax purposes as of the Underwriterdate of such sale, makes it impracticable assuming that the Ownership Certificate continues to market be held by a Permitted Transferee, determined as of the Securities on the terms date of such sale or transfer where appropriate, and in the manner contemplated in the Prospectus. At the Closing Time, the Securities shall provided that:
(i) no modifications have been approved made to the Transaction Documents as of the date of such sale or transfer;
(ii) the respective ratings of such Retained Note as of the date of such sale or transfer is not lower than the rating for listing on such Retained Note as of the New York Stock Exchange, subject only date hereof; and
(iii) no adverse changes have been made to official notice (or that would adversely affect the application of) the legal authorities applicable to these opinions as of issuance. the date hereof.
(2) The Underwriter shall have received each an opinion of counsel or counsels for the Seller, dated the applicable Delivery Date, substantially to the effect that:
(i) The Seller has been duly incorporated and is validly existing as a corporation and is in good standing under the laws of the signed Lock-Up Agreements referred State of Delaware. The Seller has the organizational power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted. The Seller has the corporate power and authority to acquire and own the Mortgage Loans.
(ii) The Seller has the corporate power and authority to (a) execute and deliver the Operative Agreements, (b) perform its obligations under and consummate the transactions provided for in Section 5(j) hereofthe Operative Agreements, and (c) transfer its rights, title and interests in, to and under the related Mortgage Loans to the Depositor on the terms and conditions provided in the Mortgage Loan Purchase Agreement.
(iii) The Seller has the corporate power and authority to (a) execute and deliver the Mortgage Loan Purchase Agreement, (b) perform its obligations under and consummate the transactions provided for in the Mortgage Loan Purchase Agreement, and (c) transfer its rights, title and interests in, to and under the related Mortgage Loans to the Depositor on the terms and conditions provided in the Mortgage Loan Purchase Agreement.
(iv) Each of the Operative Agreements has been duly authorized and executed by a duly authorized officer of the Seller.
(v) The transfer and sale by the Seller of the related Mortgage Loans to the Depositor pursuant to the Mortgage Loan Purchase Agreement, the compliance by the Seller with the provisions of the related Operative Agreements and the consummation of the transactions contemplated by the related Operative Agreements and the fulfillment of the terms thereof will not violate or breach any of the terms and provisions of the articles of incorporation or bylaws of the Seller.
(vi) No authorization, approval, or other action by, and no notice to or filing with any court, governmental authority or regulatory body is required for the due execution, delivery and performance by the Seller of the related Operative Agreements.
(vii) Each of the related Operative Agreements constitutes the valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms.
(viii) To our knowledge, there is no legal or governmental action, investigation or proceeding pending or threatened against the Seller (a) asserting the invalidity of any of the Operative Agreements, (b) seeking to prevent the consummation of any of the transactions provided for in the Operative Agreements, or (c) that would materially and adversely affect the ability of the Seller to perform its obligations under, or the validity or enforceability with respect to the Seller of, any of the Operative Agreements. Such counsel or counsels shall also deliver an opinion or opinions (i) that the transfer of all of the right, title and interest in and to the Mortgage Loans from the Seller to the Depositor and from the Depositor to the Issuer in each such Lockcase, constitutes a “true sale” for bankruptcy purposes and (ii) with respect to the “non-Up Agreement consolidation” in a bankruptcy proceeding of the Seller and the Depositor. Such counsel or counsels shall be in full force and effect also state that nothing has come to their attention that would lead them to believe that the Registration Statement (at the Closing Time and each Date of Deliverytime it became effective) or the Prospectus or the Prospectus Supplement (in both cases, as the case may be. In the event that the Underwriter exercises the option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties date of the Company Prospectus Supplement and as of the Delivery Date) or the Issuer Free Writing Prospectus (as of the date of the Issuer Free Writing Prospectus) (other than the financial and statistical information or information contained herein and therein, as to which such counsel need not express an opinion) 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 in any certificates furnished by the Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the therein not misleading.
(i) The Underwriter shall have received: Officers' Certificate. A certificatereceived an opinion of counsel to the Trust, Owner Trustee, Trust Administrator, Custodian and Indenture Trustee, dated such Date of Deliverythe Delivery Date, and in the form agreed to on or prior to the date of the President Terms Agreement.
(j) The Underwriter shall have received opinions of counsel to the Master Servicer, each Servicer and each Subservicer, dated the Delivery Date, and in the form agreed to on or a Vice President prior to the date of the Company Terms Agreement.
(k) The Underwriter shall have received opinions of counsel to any provider of any derivative instrument documented under the ISDA master agreement, and an opinion of counsel to any credit support provider or guarantor relating to such derivative instrument, dated the Delivery Date, and in the form agreed to on or prior to the date of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery. Opinions of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and the General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriter, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 6(b) hereof.T
Appears in 1 contract
Sources: Underwriting Agreement (New York Mortgage Trust 2005-3)