Conditions to the Obligations of the Underwriter. Your ------------------------------------------------ obligations to purchase and pay for the Notes on the Closing Date shall be subject to the accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on the part of the Company herein set forth, to the accuracy of the Statements of Company officers made 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 shall have become effective not later than 5:30 P.M., Milwaukee, Wisconsin time, on the date of this Agreement, or such later date or time as shall have been consented to in writing by you, and prior to the Closing Date: (i) 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 shall be pending, or, to the knowledge of the Company after due inquiry of the Commission, or you, shall be contemplated by the Commission; (ii) trading in securities on the New York Stock Exchange shall not have been suspended and minimum or maximum prices shall not have been established on such Exchange; (iii) no banking moratorium shall have been declared by Iowa, Illinois, New York, Wisconsin or United States authorities; (iv) the United States shall not have become engaged in hostilities which have resulted in a declaration of a national emergency or declaration of war and which, in your judgment, render it inadvisable to proceed with the public offering or the delivery of the Notes; and (v) neither the Company nor any of its subsidiaries shall have sustained since March 31, 1996, 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; since the respective dates as of which information is given in the Prospectus there shall not have been any change in the Capital Stock or debt of the Company or the Bank or a change, or a development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, the Bank or any other subsidiary otherwise than as set forth and described in the Prospectus; and operating, political, international, economic or market conditions shall not exist, as of the date hereof or as the Closing Date, the effect of which, in any case described in this clause (a), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering of the Notes at 100% of the principal amount thereof. (b) The Notes shall have been qualified or registered for sale under the state securities or blue sky laws of such jurisdictions as shall have been specified by you prior to the date hereof; (c) You shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the opinion of your legal counsel is material, or omits to state a fact which, in the opinion of such legal counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading; (d) Prior to the effective date of the Registration Statement and prior to the Closing Date you shall have received an opinion or opinions of Winthrop & Weinstine, P.A., as counsel for the Company, dated as of the effective date and the Closing Date, respectively, in form satisfactory to you and your legal counsel, to the effect contained in paragraphs (a), (f) (provided, however, that the opinion of such counsel with respect to paragraph (f) of Section 2 hereof shall be limited solely to the status of title of the Company's banking facility located at 230-18th Street, Rock Island, Illinois), (g), (h) and (i) of Section 2 hereof (in each of these respective paragraphs where the Company has qualified its representations and warranties to the best of its knowledge, such counsel may do the same, and with respect to paragraphs (h) and (i) of Section 2 hereof, such counsel may qualify its opinion, to the extent acceptable to you and your legal counsel, to the best of its knowledge after due inquiry of each of the current directors of the Company) and further to the effect that: (i) the Company is duly registered under the Bank Holding Company Act and is in compliance in all material respects with the provisions thereof and the rules and regulations thereunder, and, the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all other applicable laws and governmental regulations of jurisdictions to which they are subject; provided, however, that no opinion need be expressed by such counsel as to whether the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all applicable laws and governmental regulations governing the making and enforceability of any loan made by the Company or any of its subsidiaries to third parties; (ii) the Company has full power and authority to enter into and perform this Agreement and the Indenture and to issue and sell the Notes hereunder and this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company and is a validly and legally enforceable binding obligation of the Company except to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by order of any court; (iii) the Notes have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally enforceable binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights; the terms of the Notes and the Indenture substantially conform to the descriptions thereof in the Prospectus; (iv) the Indenture has been duly authorized, executed and delivered by the Company, and (assuming that the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally enforceable binding instrument of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and except to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by any order of any court; (v) all taxes and fees required to be paid with respect to the execution of the Indenture and the issuance of the Notes have been paid; and there is no need to file or record the Indenture with any governmental authority except in connection with compliance with federal and state securities laws; (vi) all of the issued shares of capital stock of the Company as set forth in the Prospectus have been duly and validly authorized and issued and are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and, except to the extent described in the Prospectus, all outstanding shares of stock of each subsidiary of the Company are owned by the Company or another subsidiary of the Company, have been duly and validly authorized and issued, are fully paid and nonassessable, and except to the extent described in the Prospectus, including the financial statements and notes thereto, the shares of stock of each subsidiary owned by the Company or a subsidiary thereof are held free and clear of liens and encumbrances; (vii) the Registration Statement has become effective under the Act and the Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the effectiveness of the Registration Statement, and to the best of such counsel's knowledge after due inquiry of the Commission, no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the Prospectus and each amendment and supplement thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules thereto, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, the Rules and Regulations, the Trust Indenture Act and the rules and regulations thereunder; the descriptions in each Preliminary Prospectus and in the Prospectus of statutes, legal proceedings, contracts and other documents are accurate in all material respects and present fairly the information contained therein; such counsel has no reason to believe that the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto as of the date of such opinion contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading (other than financial statements and related schedules thereto, as to which such counsel need express no opinion); and such counsel does not know, after due inquiry and investigation, of any contracts, leases, agreements or other documents, or transactions or relationships of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto which are not filed or described as required (no opinion need be given as to consents, approvals, authorizations, registrations or qualifications required under state securities or blue sky laws in connection with the public offering of the Notes by you); and
Appears in 1 contract
Sources: Underwriting Agreement (Financial Services Corporation of the Midwest)
Conditions to the Obligations of the Underwriter. Your The ------------------------------------------------ obligations of the Underwriter to purchase and pay for the Notes Certificates on the Closing Date shall be subject to the accuracy, as of the date hereof and as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein set forthBank contained herein, to the accuracy of the Statements statements of Company officers the Bank made in any certificates pursuant to the provisions terms hereof, to the performance by the Company Bank of its obligations hereunder, hereunder and under the applicable Terms Agreement and to the following additional conditions:
(a) The Registration Statement Final Prospectus shall have become effective not later than 5:30 P.M.been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the Chase Securities Inc. December 10, Milwaukee, Wisconsin time, on 1997 Page 13 rules and regulations of the date Commission under the Act and in accordance with Section 5(a) of this Agreement; and, or such later date or time as shall have been consented to in writing by you, and prior to of the Closing Date:
(i) , no stop order suspending the effectiveness of the any Registration Statement shall have been issued issued, and no proceedings for that such purpose shall have been instituted or shall be pending, or, to the knowledge of the Company after due inquiry of the Commission, or you, shall be contemplated threatened by the Commission;
(ii) trading in securities on ; and all requests for additional information from the New York Stock Exchange shall not have been suspended and minimum or maximum prices shall not have been established on such Exchange;
(iii) no banking moratorium Commission with respect to any Registration Statement shall have been declared by Iowa, Illinois, New York, Wisconsin or United States authorities;complied with to the reasonable satisfaction of the Underwriter.
(ivb) Subsequent to the United States shall not have become engaged in hostilities which have resulted in a declaration date of a national emergency or declaration of war and whichthis Agreement, in your judgment, render it inadvisable to proceed with the public offering or the delivery of the Notes; and
(v) neither the Company nor any of its subsidiaries shall have sustained since March 31, 1996, 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; since the respective dates as of which information is given in the Prospectus there shall not have been occurred (i) any change in the Capital Stock or debt of the Company or the Bank or a change, or a any development involving a prospective change, in or affecting particularly the general affairs, management, financial position, stockholders' equity business or results of operations properties of the CompanyBank which materially impairs the investment quality of the Certificates; (ii) any suspension or material limitation of trading of securities generally on the New York Stock Exchange or the American Stock Exchange; (iii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any material outbreak or declaration of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, the Bank or any other subsidiary otherwise than as set forth and described in the Prospectus; and operating, political, international, economic or market conditions shall not exist, as judgment of the date hereof Underwriter, impracticable to market the Certificates on the terms specified herein and the applicable Terms Agreement.
(c) The Underwriter has received a certificate of a Vice President or as other proper officer of the Bank, dated the Closing Date, the effect of which, in any case described in this clause (a), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering of the Notes at 100% of the principal amount thereof.
(b) The Notes shall have been qualified or registered for sale under the state securities or blue sky laws of which such jurisdictions as shall have been specified by you prior to the date hereof;
(c) You shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the opinion of your legal counsel is material, or omits to state a fact which, in the opinion of such legal counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading;
(d) Prior to the effective date of the Registration Statement and prior to the Closing Date you shall have received an opinion or opinions of Winthrop & Weinstine, P.A., as counsel for the Company, dated as of the effective date and the Closing Date, respectively, in form satisfactory to you and your legal counsel, to the effect contained in paragraphs (a), (f) (provided, however, that the opinion of such counsel with respect to paragraph (f) of Section 2 hereof shall be limited solely to the status of title of the Company's banking facility located at 230-18th Street, Rock Island, Illinois), (g), (h) and (i) of Section 2 hereof (in each of these respective paragraphs where the Company has qualified its representations and warranties to the best of its knowledge, such counsel may do the same, and with respect to paragraphs (h) and (i) of Section 2 hereof, such counsel may qualify its opinion, to the extent acceptable to you and your legal counselofficer, to the best of its knowledge after due inquiry of each of the current directors of the Company) and further to the effect that:
his knowledge, shall state that (i) the Company is duly registered under representations and warranties of the Bank Holding Company Act in this Agreement are true and is in compliance correct in all material respects with the provisions thereof and the rules and regulations thereunderrespects, and, the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all other applicable laws and governmental regulations of jurisdictions to which they are subject; provided, however, that no opinion need be expressed by such counsel as to whether the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all applicable laws and governmental regulations governing the making and enforceability of any loan made by the Company or any of its subsidiaries to third parties;
(ii) the Company Bank has full power complied with all agreements and authority satisfied all conditions on its part to enter into and perform this Agreement and the Indenture and to issue and sell the Notes hereunder and this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company and is a validly and legally enforceable binding obligation of the Company except be performed or satisfied at or prior to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any ordersClosing Date, rules and regulations thereunder, and by order of any court;
(iii) no stop order suspending the Notes have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally enforceable binding obligations effectiveness of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights; the terms of the Notes and the Indenture substantially conform to the descriptions thereof in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, and (assuming that the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally enforceable binding instrument of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and except to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by any order of any court;
(v) all taxes and fees required to be paid with respect to the execution of the Indenture and the issuance of the Notes have been paid; and there is no need to file or record the Indenture with any governmental authority except in connection with compliance with federal and state securities laws;
(vi) all of the issued shares of capital stock of the Company as set forth in the Prospectus have been duly and validly authorized and issued and are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and, except to the extent described in the Prospectus, all outstanding shares of stock of each subsidiary of the Company are owned by the Company or another subsidiary of the Company, have been duly and validly authorized and issued, are fully paid and nonassessable, and except to the extent described in the Prospectus, including the financial statements and notes thereto, the shares of stock of each subsidiary owned by the Company or a subsidiary thereof are held free and clear of liens and encumbrances;
(vii) the Registration Statement has become effective under the Act been issued and the Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the effectiveness of the Registration Statement, and to the best of such counsel's knowledge after due inquiry of the Commission, no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the Prospectus and each amendment and supplement thereto made threatened by the Company prior to Commission and (iv) the Closing Date (other than the financial statements and related schedules thereto, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, the Rules and Regulations, the Trust Indenture Act and the rules and regulations thereunder; the descriptions in each Preliminary Final Prospectus and in the Prospectus of statutes, legal proceedings, contracts and other documents are accurate in all material respects and present fairly the information contained therein; such counsel has no reason to believe that the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto as of the date of such opinion contains does not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading misleading.
(other than financial statements and related schedules thereto, as to which such counsel need express no opinion); and such counsel does not know, after due inquiry and investigation, of any contracts, leases, agreements or other documents, or transactions or relationships of a character required to be filed as an exhibit d) The Bank shall have furnished to the Registration Statement Underwriter the opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Bank, dated the Closing Date, in substantially the forms attached hereto as Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter, one or required more opinions, each dated the Closing Date, with respect to be described in the validity of the Certificates, the Initial Registration Statement, any Preliminary the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Prospectus Uniform Commercial Code, as adopted in the State of Delaware, and such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of the date of the applicable Terms Agreement and as of the Closing Date confirming that they are certified independent public accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall receive evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement has been duly authorized, executed, and delivered by the Chase Securities Inc. December 10, 1997 Page 15 Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed and authenticated by the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement nor the consummation of any amendment of the transactions contemplated thereby require the consent or supplement thereto approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By- laws of the Trustee.
(i) The Underwriter shall be named as recipient or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to it that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in which such officer, to the best of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are not filed or described as required true and correct.
(no opinion need be given as to consents, approvals, authorizations, registrations or qualifications required under state securities or blue sky laws l) All proceedings in connection with the public offering transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter in all material respects and the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents as the Underwriter or counsel for the Underwriter may reasonably request. If any of the Notes conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and their counsel, this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by you); andthe Underwriter. Notice of such cancellation shall be given to the Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. Your The ------------------------------------------------ obligations of the Underwriter to purchase and pay for the Notes Certificates on the Closing Date shall be subject to the accuracy, as of the date hereof and as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein set forthBank contained herein, to the accuracy of the Statements statements of Company officers the Bank made in any certificates pursuant to the provisions terms hereof, to the performance by the Company Bank of its obligations hereunder, hereunder and under the applicable Terms Agreement and to the following additional conditions:
(a) The Registration Statement Final Prospectus shall have become effective not later than 5:30 P.M.been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the Chase Securities Inc. September 15, Milwaukee, Wisconsin time, on 1997 Page 13 rules and regulations of the date Commission under the Act and in accordance with Section 5(a) of this Agreement; and, or such later date or time as shall have been consented to in writing by you, and prior to of the Closing Date:
(i) , no stop order suspending the effectiveness of the any Registration Statement shall have been issued issued, and no proceedings for that such purpose shall have been instituted or shall be pending, or, to the knowledge of the Company after due inquiry of the Commission, or you, shall be contemplated threatened by the Commission;
(ii) trading in securities on ; and all requests for additional information from the New York Stock Exchange shall not have been suspended and minimum or maximum prices shall not have been established on such Exchange;
(iii) no banking moratorium Commission with respect to any Registration Statement shall have been declared by Iowa, Illinois, New York, Wisconsin or United States authorities;complied with to the reasonable satisfaction of the Underwriter.
(ivb) Subsequent to the United States shall not have become engaged in hostilities which have resulted in a declaration date of a national emergency or declaration of war and whichthis Agreement, in your judgment, render it inadvisable to proceed with the public offering or the delivery of the Notes; and
(v) neither the Company nor any of its subsidiaries shall have sustained since March 31, 1996, 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; since the respective dates as of which information is given in the Prospectus there shall not have been occurred (i) any change in the Capital Stock or debt of the Company or the Bank or a change, or a any development involving a prospective change, in or affecting particularly the general affairs, management, financial position, stockholders' equity business or results of operations properties of the CompanyBank which materially impairs the investment quality of the Certificates; (ii) any suspension or material limitation of trading of securities generally on the New York Stock Exchange or the American Stock Exchange; (iii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any material outbreak or declaration of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, the Bank or any other subsidiary otherwise than as set forth and described in the Prospectus; and operating, political, international, economic or market conditions shall not exist, as judgment of the date hereof Underwriter, impracticable to market the Certificates on the terms specified herein and the applicable Terms Agreement.
(c) The Underwriter have received a certificate of a Vice President or as other proper officer of the Bank, dated the Closing Date, the effect of which, in any case described in this clause (a), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering of the Notes at 100% of the principal amount thereof.
(b) The Notes shall have been qualified or registered for sale under the state securities or blue sky laws of which such jurisdictions as shall have been specified by you prior to the date hereof;
(c) You shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the opinion of your legal counsel is material, or omits to state a fact which, in the opinion of such legal counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading;
(d) Prior to the effective date of the Registration Statement and prior to the Closing Date you shall have received an opinion or opinions of Winthrop & Weinstine, P.A., as counsel for the Company, dated as of the effective date and the Closing Date, respectively, in form satisfactory to you and your legal counsel, to the effect contained in paragraphs (a), (f) (provided, however, that the opinion of such counsel with respect to paragraph (f) of Section 2 hereof shall be limited solely to the status of title of the Company's banking facility located at 230-18th Street, Rock Island, Illinois), (g), (h) and (i) of Section 2 hereof (in each of these respective paragraphs where the Company has qualified its representations and warranties to the best of its knowledge, such counsel may do the same, and with respect to paragraphs (h) and (i) of Section 2 hereof, such counsel may qualify its opinion, to the extent acceptable to you and your legal counselofficer, to the best of its knowledge after due inquiry of each of the current directors of the Company) and further to the effect that:
his knowledge, shall state that (i) the Company is duly registered under representations and warranties of the Bank Holding Company Act in this Agreement are true and is in compliance correct in all material respects with the provisions thereof and the rules and regulations thereunderrespects, and, the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all other applicable laws and governmental regulations of jurisdictions to which they are subject; provided, however, that no opinion need be expressed by such counsel as to whether the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all applicable laws and governmental regulations governing the making and enforceability of any loan made by the Company or any of its subsidiaries to third parties;
(ii) the Company Bank has full power complied with all agreements and authority satisfied all conditions on its part to enter into and perform this Agreement and the Indenture and to issue and sell the Notes hereunder and this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company and is a validly and legally enforceable binding obligation of the Company except be performed or satisfied at or prior to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any ordersClosing Date, rules and regulations thereunder, and by order of any court;
(iii) no stop order suspending the Notes have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally enforceable binding obligations effectiveness of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights; the terms of the Notes and the Indenture substantially conform to the descriptions thereof in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, and (assuming that the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally enforceable binding instrument of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and except to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by any order of any court;
(v) all taxes and fees required to be paid with respect to the execution of the Indenture and the issuance of the Notes have been paid; and there is no need to file or record the Indenture with any governmental authority except in connection with compliance with federal and state securities laws;
(vi) all of the issued shares of capital stock of the Company as set forth in the Prospectus have been duly and validly authorized and issued and are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and, except to the extent described in the Prospectus, all outstanding shares of stock of each subsidiary of the Company are owned by the Company or another subsidiary of the Company, have been duly and validly authorized and issued, are fully paid and nonassessable, and except to the extent described in the Prospectus, including the financial statements and notes thereto, the shares of stock of each subsidiary owned by the Company or a subsidiary thereof are held free and clear of liens and encumbrances;
(vii) the Registration Statement has become effective under the Act been issued and the Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the effectiveness of the Registration Statement, and to the best of such counsel's knowledge after due inquiry of the Commission, no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the Prospectus and each amendment and supplement thereto made threatened by the Company prior to Commission and (iv) the Closing Date (other than the financial statements and related schedules thereto, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, the Rules and Regulations, the Trust Indenture Act and the rules and regulations thereunder; the descriptions in each Preliminary Final Prospectus and in the Prospectus of statutes, legal proceedings, contracts and other documents are accurate in all material respects and present fairly the information contained therein; such counsel has no reason to believe that the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto as of the date of such opinion contains does not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading misleading.
(other than financial statements and related schedules thereto, as to which such counsel need express no opinion); and such counsel does not know, after due inquiry and investigation, of any contracts, leases, agreements or other documents, or transactions or relationships of a character required to be filed as an exhibit d) The Bank shall have furnished to the Registration Statement Underwriter the opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Bank, dated the Closing Date, in substantially the forms attached hereto as Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter, one or required more opinions, each dated the Closing Date, with respect to be described in the validity of the Certificates, the Initial Registration Statement, any Preliminary the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Prospectus Uniform Commercial Code, as adopted in the State of Delaware, and such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of the date of the applicable Terms Agreement and as of the Closing Date confirming that they are certified independent public accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall receive evidence satisfactory to them that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement has been duly authorized, executed, and Chase Securities Inc. September 15, 1997 Page 15 delivered by the Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed and authenticated by the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement nor the consummation of any amendment of the transactions contemplated thereby require the consent or supplement thereto approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By-laws of the Trustee.
(i) The Underwriter shall be named as recipients or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to them that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in which such officer, to the best of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are not filed or described as required true and correct. Chase Securities Inc. September 15, 1997 Page 16
(no opinion need be given as to consents, approvals, authorizations, registrations or qualifications required under state securities or blue sky laws l) All proceedings in connection with the public offering transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter in all material respects and the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents as the Underwriter or counsel for the Underwriter may reasonably request. If any of the Notes conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and their counsel, this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by you); andthe Underwriter. Notice of such cancellation shall be given to the Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. Your ------------------------------------------------ obligations The obligation of the Underwriter to purchase and pay for the Notes on the Closing Date shall Certificates will be subject to the accuracy, as accuracy of the representations and warranties on the part of the Banks herein on the date hereof and as of the Closing Date, of the representations and warranties on the part of the Company herein set forth, to the accuracy of the Statements statements of Company officers of the Banks made pursuant to the provisions hereof, to the performance by the Company Banks of its their respective obligations hereunder, hereunder and to the following additional conditionsconditions precedent:
(a) The Registration Statement On or prior to the date hereof the Underwriter shall have become effective not later than 5:30 P.M.received a letter (a "Procedures Letter"), Milwaukee, Wisconsin time, on dated the date of this AgreementAgreement of each of Price Waterhouse LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ verifying the accuracy of such financial and statistical data contained in the Prospectus as the Underwriter shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Underwriter shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such later date or time as new data;
(b) The Prospectus shall have been consented to filed in writing the manner and within the time period required by you, Rule 424(b) of the Rules and Regulations; and prior to the Closing Date:
(i) , 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 shall be pending, or, to the knowledge of the Company after due inquiry of the Commission, or you, shall be contemplated by the Commissionthreatened;
(iic) trading in securities on Subsequent to the New York Stock Exchange shall not have been suspended execution and minimum or maximum prices shall not have been established on such Exchange;
(iii) no banking moratorium shall have been declared by Iowa, Illinois, New York, Wisconsin or United States authorities;
(iv) the United States shall not have become engaged in hostilities which have resulted in a declaration of a national emergency or declaration of war and which, in your judgment, render it inadvisable to proceed with the public offering or the delivery of the Notes; and
(v) neither the Company nor any of its subsidiaries shall have sustained since March 31this Agreement, 1996, 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; since the respective dates as of which information is given in the Prospectus there shall not have been occurred (i) any change in the Capital Stock or debt of the Company or the Bank or a change, or a any development involving a prospective change, in or affecting particularly the general affairs, management, financial position, stockholders' equity business or results properties of operations any of the CompanyBanks, The Chase Manhattan Corporation, CITSF or The CIT Group Holdings, Inc. which, in the Bank reasonable judgment of the Underwriter, materially impairs the investment quality of the Certificates or makes it impractical to market the Certificates; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of any of the Banks or The Chase Manhattan Corporation, on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by Federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other subsidiary otherwise than as set forth and described substantial national or international calamity or emergency if, in the Prospectus; and operating, political, international, economic or market conditions shall not exist, as reasonable judgment of the date hereof or as the Closing DateUnderwriter, the effect of whichany such outbreak, in any case described in this clause (a)escalation, is in your judgment so material and adverse as to make calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with the public offering completion of the Notes at 100% sale of and any payment for the principal amount thereof.
(b) The Notes shall have been qualified or registered for sale under the state securities or blue sky laws of such jurisdictions as shall have been specified by you prior to the date hereof;
(c) You shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the opinion of your legal counsel is material, or omits to state a fact which, in the opinion of such legal counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingCertificates;
(d) Prior to the effective date of the Registration Statement and prior to The Underwriter shall have received opinions, dated the Closing Date you and reasonably satisfactory, when taken together, in form and substance to the Underwriter, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Banks, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(e) The Underwriter shall have received an opinion or opinions of Winthrop ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Weinstine▇▇▇▇▇▇▇▇, P.A.special counsel to the Banks, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to certain matters relating to the transfers from each Bank to the Trust of its Receivables, with respect to the perfection of the Trust's interest in the Receivables transferred by Chase and with respect to the grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, Special Counsel to the Trust, with respect to the perfection of the Trust's interest in the Receivables transferred by Chase USA and the Indenture Trustee's interests in the Receivables;
(f) The Underwriter shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇, counsel to the Servicer, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to corporate and securities law matters.
(g) The Underwriter shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriter, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to the validity of the Certificates, the Registration Statement, the Prospectus (including certain matters relating to the transfer to the Trust of security interests in California Financed Vehicles) and other related matters as the Underwriter may require, and the Banks shall have furnished to such counsel such documents as they reasonably request for the Companypurpose of enabling them to pass upon such matters;
(h) The Underwriter shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special U.S. tax counsel to the Banks, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(i) The Underwriter shall have received form ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special Oklahoma tax counsel to the Banks, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction covered by this Agreement.
(j) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriter with respect to such matters as are customary for the transactions contemplated by this Agreement; In rendering such opinions, counsel to the Indenture Trustee may rely on the opinion of the effective date office of the general counsel to the Indenture Trustee.
(k) The Underwriter shall have received an opinion of counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Underwriter and its counsel, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(l) The Certificates have been rated at least "A" by Standard & Poor's, A3 by ▇▇▇▇▇'▇ or "A+" by ▇▇▇▇ & ▇▇▇▇▇▇. The Class A-1 Notes shall have been rated "A-1+" by Standard & Poor's, P-1 by ▇▇▇▇▇'▇ and "D-1" by ▇▇▇▇ & ▇▇▇▇▇▇. The Notes other than the Class A-1 Notes shall have been rated "A" by Standard & Poor's, A3 by ▇▇▇▇▇'▇ and "A" by ▇▇▇▇ & ▇▇▇▇▇▇;
(m) The Underwriter shall have received a certificate, dated the Closing Date, respectivelyof an attorney-in-fact, a Vice President or more senior officer of each Bank in form satisfactory to you and your legal counsel, to the effect contained in paragraphs (a), (f) (provided, however, that the opinion of which such counsel with respect to paragraph (f) of Section 2 hereof shall be limited solely to the status of title of the Company's banking facility located at 230-18th Street, Rock Island, Illinois), (g), (h) and (i) of Section 2 hereof (in each of these respective paragraphs where the Company has qualified its representations and warranties to the best of its knowledge, such counsel may do the same, and with respect to paragraphs (h) and (i) of Section 2 hereof, such counsel may qualify its opinion, to the extent acceptable to you and your legal counselperson, to the best of its his or her knowledge after due inquiry of each of the current directors of the Company) and further to the effect that:
reasonable investigation, shall state that (i) the Company is duly registered under the representations and warranties of such Bank Holding Company Act in this Agreement are true and is in compliance correct in all material respects with on and as of the provisions thereof and the rules and regulations thereunderClosing Date, and, the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all other applicable laws and governmental regulations of jurisdictions to which they are subject; provided, however, that no opinion need be expressed by such counsel as to whether the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all applicable laws and governmental regulations governing the making and enforceability of any loan made by the Company or any of its subsidiaries to third parties;
(ii) the Company that such Bank has full power complied with all agreements and authority satisfied all conditions on its part to enter into and perform this Agreement and the Indenture and to issue and sell the Notes be performed or satisfied hereunder and this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company and is a validly and legally enforceable binding obligation of the Company except at or prior to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any ordersClosing Date, rules and regulations thereunder, and by order of any court;
(iii) the Notes have been duly authorizedrepresentations and warranties of such Bank, executedas Seller, authenticatedin the Sale and Servicing Agreement and, issued as Depositor, in the Trust Agreement, are true and delivered and constitute valid and legally enforceable binding obligations correct as of the Company entitled to dates specified in the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights; the terms of the Notes Sale and Servicing Agreement and the Indenture substantially conform to the descriptions thereof in the Prospectus;
Trust Agreement, (iv) the Indenture has been duly authorized, executed and delivered by the Company, and (assuming that the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally enforceable binding instrument of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and except to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by any no stop order of any court;
(v) all taxes and fees required to be paid with respect to the execution of the Indenture and the issuance of the Notes have been paid; and there is no need to file or record the Indenture with any governmental authority except in connection with compliance with federal and state securities laws;
(vi) all of the issued shares of capital stock of the Company as set forth in the Prospectus have been duly and validly authorized and issued and are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and, except to the extent described in the Prospectus, all outstanding shares of stock of each subsidiary of the Company are owned by the Company or another subsidiary of the Company, have been duly and validly authorized and issued, are fully paid and nonassessable, and except to the extent described in the Prospectus, including the financial statements and notes thereto, the shares of stock of each subsidiary owned by the Company or a subsidiary thereof are held free and clear of liens and encumbrances;
(vii) the Registration Statement has become effective under the Act and the Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the effectiveness of the Registration Statement, Statement has been issued and to the best of such counsel's knowledge after due inquiry of the Commission, no proceedings for that purpose have been instituted or are pending or contemplated under threatened by the Act, Commission and the Registration Statement, (v) the Prospectus and each amendment and supplement thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules thereto, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, the Rules and Regulations, the Trust Indenture Act and the rules and regulations thereunder; the descriptions in each Preliminary Prospectus and in the Prospectus of statutes, legal proceedings, contracts and other documents are accurate in all material respects and present fairly the information contained therein; such counsel has no reason to believe that the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto as of the date of such opinion contains does not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances in which they were made, not misleading misleading;
(other than financial statements and related schedules thereton) On the Closing Date, as to which such counsel need express no opinion); and such counsel does not know, after due inquiry and investigation, of any contracts, leases, agreements or other documents, or transactions or relationships of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto which are not filed or described as required (no opinion need be given as to consents, approvals, authorizations, registrations or qualifications required under state securities or blue sky laws in connection with the public offering all of the Notes by you)shall have been issued and sold pursuant to the Note Underwriting Agreement; and
(o) CITSF, the Banks and the Underwriter on behalf of the Note Underwriters shall have entered into an Indemnification Agreement (the "Indemnification Agreement") satisfactory in form and substance to the parties thereto. Each Bank will furnish the Underwriter, or cause the Underwriter to be furnished, with such number of conformed copies of such opinions, certificates, letters and documents as the Underwriter reasonably requests.
Appears in 1 contract
Sources: Certificate Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriter. Your The ------------------------------------------------ obligations of the Underwriter to purchase and pay for the Notes Certificates on the Closing Date shall be subject to the accuracy, as of the date hereof and as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein set forthBank contained herein, to the accuracy of the Statements statements of Company officers the Bank made in any certificates pursuant to the provisions terms hereof, to the performance by the Company Bank of its obligations hereunder, hereunder and under the applicable Terms Agreement and to the following additional conditions:
(a) The Registration Statement Final Prospectus shall have become effective not later than 5:30 P.M., Milwaukee, Wisconsin time, on been filed with the date Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the rules and regulations of the Commission under the Act and in accordance with Section 5(a) of this Agreement; and, or such later date or time as shall have been consented to in writing by you, and prior to of the Closing Date:
(i) , no stop order suspending the effectiveness of the any Registration Statement shall have been issued issued, and no proceedings for that such purpose shall have been instituted or shall be pendingChase Securities Inc. December 17, or, to the knowledge of the Company after due inquiry of the Commission, or you, shall be contemplated 1997 Page 16 threatened by the Commission;
(ii) trading in securities on ; and all requests for additional information from the New York Stock Exchange shall not have been suspended and minimum or maximum prices shall not have been established on such Exchange;
(iii) no banking moratorium Commission with respect to any Registration Statement shall have been declared by Iowa, Illinois, New York, Wisconsin or United States authorities;complied with to the reasonable satisfaction of the Underwriter.
(ivb) Subsequent to the United States shall not have become engaged in hostilities which have resulted in a declaration date of a national emergency or declaration of war and whichthis Agreement, in your judgment, render it inadvisable to proceed with the public offering or the delivery of the Notes; and
(v) neither the Company nor any of its subsidiaries shall have sustained since March 31, 1996, 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; since the respective dates as of which information is given in the Prospectus there shall not have been occurred (i) any change in the Capital Stock or debt of the Company or the Bank or a change, or a any development involving a prospective change, in or affecting particularly the general affairs, management, financial position, stockholders' equity business or results of operations properties of the CompanyBank which materially impairs the investment quality of the Certificates; (ii) any suspension or material limitation of trading of securities generally on the New York Stock Exchange or the American Stock Exchange; (iii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any material outbreak or declaration of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, the Bank or any other subsidiary otherwise than as set forth and described in the Prospectus; and operating, political, international, economic or market conditions shall not exist, as judgment of the date hereof Underwriter, impracticable to market the Certificates on the terms specified herein and the applicable Terms Agreement.
(c) The Underwriter has received a certificate of a Vice President or as other proper officer of the Bank, dated the Closing Date, the effect of which, in any case described in this clause (a), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering of the Notes at 100% of the principal amount thereof.
(b) The Notes shall have been qualified or registered for sale under the state securities or blue sky laws of which such jurisdictions as shall have been specified by you prior to the date hereof;
(c) You shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the opinion of your legal counsel is material, or omits to state a fact which, in the opinion of such legal counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading;
(d) Prior to the effective date of the Registration Statement and prior to the Closing Date you shall have received an opinion or opinions of Winthrop & Weinstine, P.A., as counsel for the Company, dated as of the effective date and the Closing Date, respectively, in form satisfactory to you and your legal counsel, to the effect contained in paragraphs (a), (f) (provided, however, that the opinion of such counsel with respect to paragraph (f) of Section 2 hereof shall be limited solely to the status of title of the Company's banking facility located at 230-18th Street, Rock Island, Illinois), (g), (h) and (i) of Section 2 hereof (in each of these respective paragraphs where the Company has qualified its representations and warranties to the best of its knowledge, such counsel may do the same, and with respect to paragraphs (h) and (i) of Section 2 hereof, such counsel may qualify its opinion, to the extent acceptable to you and your legal counselofficer, to the best of its knowledge after due inquiry of each of the current directors of the Company) and further to the effect that:
his knowledge, shall state that (i) the Company is duly registered under representations and warranties of the Bank Holding Company Act in this Agreement are true and is in compliance correct in all material respects with the provisions thereof and the rules and regulations thereunderrespects, and, the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all other applicable laws and governmental regulations of jurisdictions to which they are subject; provided, however, that no opinion need be expressed by such counsel as to whether the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all applicable laws and governmental regulations governing the making and enforceability of any loan made by the Company or any of its subsidiaries to third parties;
(ii) the Company Bank has full power complied with all agreements and authority satisfied all conditions on its part to enter into and perform this Agreement and the Indenture and to issue and sell the Notes hereunder and this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company and is a validly and legally enforceable binding obligation of the Company except be performed or satisfied at or prior to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any ordersClosing Date, rules and regulations thereunder, and by order of any court;
(iii) no stop order suspending the Notes have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally enforceable binding obligations effectiveness of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights; the terms of the Notes and the Indenture substantially conform to the descriptions thereof in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, and (assuming that the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally enforceable binding instrument of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and except to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by any order of any court;
(v) all taxes and fees required to be paid with respect to the execution of the Indenture and the issuance of the Notes have been paid; and there is no need to file or record the Indenture with any governmental authority except in connection with compliance with federal and state securities laws;
(vi) all of the issued shares of capital stock of the Company as set forth in the Prospectus have been duly and validly authorized and issued and are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and, except to the extent described in the Prospectus, all outstanding shares of stock of each subsidiary of the Company are owned by the Company or another subsidiary of the Company, have been duly and validly authorized and issued, are fully paid and nonassessable, and except to the extent described in the Prospectus, including the financial statements and notes thereto, the shares of stock of each subsidiary owned by the Company or a subsidiary thereof are held free and clear of liens and encumbrances;
(vii) the Registration Statement has become effective under the Act been issued and the Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the effectiveness of the Registration Statement, and to the best of such counsel's knowledge after due inquiry of the Commission, no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the Prospectus and each amendment and supplement thereto made threatened by the Company prior to Commission and (iv) the Closing Date (other than the financial statements and related schedules thereto, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, the Rules and Regulations, the Trust Indenture Act and the rules and regulations thereunder; the descriptions in each Preliminary Final Prospectus and in the Prospectus of statutes, legal proceedings, contracts and other documents are accurate in all material respects and present fairly the information contained therein; such counsel has no reason to believe that the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto as of the date of such opinion contains does not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading misleading.
(other than financial statements and related schedules thereto, as to which such counsel need express no opinion); and such counsel does not know, after due inquiry and investigation, of any contracts, leases, agreements or other documents, or transactions or relationships of a character required to be filed as an exhibit d) The Bank shall have furnished to the Registration Statement Underwriter the opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Chase Securities Inc. December 17, 1997 Page 17 Bank, dated the Closing Date, in substantially the forms attached hereto as Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter, one or required more opinions, each dated the Closing Date, with respect to be described in the validity of the Certificates, the Initial Registration Statement, any Preliminary the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Prospectus Uniform Commercial Code, as adopted in the State of Delaware, and such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of the date of the applicable Terms Agreement and as of the Closing Date confirming that they are certified independent public accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall receive evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement has been duly authorized, executed, and delivered by the Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law).
(iv) The Certificates have been duly executed and authenticated by the Trustee.
(v) Neither the execution nor the delivery by the Trustee of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement nor the consummation of any amendment of the transactions contemplated thereby require the consent or supplement thereto approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not Chase Securities Inc. December 17, 1997 Page 19 conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By-laws of the Trustee.
(i) The Underwriter shall be named as recipient or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to it that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in which such officer, to the best of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are not filed or described as required true and correct.
(no opinion need be given as to consents, approvals, authorizations, registrations or qualifications required under state securities or blue sky laws l) All proceedings in connection with the public offering transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter in all material respects and the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents as the Underwriter or counsel for the Underwriter may reasonably request. If any of the Notes conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and their counsel, this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by you); andthe Underwriter. Notice of such cancellation shall be given to the Bank in writing or by telephone or facsimile confirmed in writing.
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