Conditions to the Obligations of the Underwriters. The obligations of the Underwriters 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 Teekay Parties contained herein as of the Execution Time, the Closing Date and any Option Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Teekay Parties made in any certificates delivered pursuant to the provisions hereof, to the performance by the Teekay Parties of their obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed in the 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) 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands counsel for the Company, to have furnished to the Representatives their written opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, substantially to the effect that:

Appears in 3 contracts

Sources: Underwriting Agreement (Teekay Tankers Ltd.), Underwriting Agreement (Teekay Tankers Ltd.), Underwriting Agreement (Teekay Tankers Ltd.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of their obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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) 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused E▇▇▇▇ & V▇▇ ▇▇▇▇▇▇, ~~▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands counsel for the Company,~~ LLP to have furnished to the Representatives their ~~written~~ opinion, dated the Closing Date and addressed to the Representatives, to the effect that: (i) each of the Company and its subsidiaries 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 or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the 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 wherein it owns or leases material properties or conducts material business and where the failure to be so qualified would, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Prospectus; (ii) all the outstanding equity interests of the Company’s subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding equity interests of the Company’s 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 Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the certificates for the Securities are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and except as set forth in the Disclosure Package and the Prospectus and 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 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 Disclosure Package and the Prospectus, and to the knowledge of such counsel, there is no franchise, contract or other document 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 in the Preliminary Prospectus and Prospectus under the headings “Description of Securities” and the statements in “Part II: Indemnification of Directors and Officers” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings; (v) based solely upon the Notice of Effectiveness and oral confirmation thereof, the Registration Statement has become effective under the 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 or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and 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) nothing has come to such counsel’s attention that would reasonably cause it to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package and the price to the public, the number of Underwritten Securities, the number of Option Securities and the underwriting discount on the cover page of the Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading; (vii) this Agreement has been duly authorized, executed and delivered by the Company; (viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (ix) no consent, approval, authorization filing with or order of any court or governmental agency or body is required for the execution, delivery and performance by the Company of this Agreement or the consummation of 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 or with FINRA (as to which such counsel will express no opinion) in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus; (x) neither 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 conflict with, result in a breach or violation, 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 the certificate of formation or operating agreement of such subsidiary or (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition or covenant or instrument to which the Company or its subsidiaries 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 applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties, which violation, default or lien imposition would, in the case of clauses (ii) and (iii) above either individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus; (xi) to the knowledge of such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and 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 Delaware 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on representations of the Company in this Agreement, and certificates of responsible officers of the Company and its subsidiaries and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The Representatives shall have received from K▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, 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 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any amendment or supplement thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (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 Prospectus, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused EisnerAmper LLP to have furnished to the Representatives, 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 ~~reasonably~~ satisfactory to the Representatives, ~~substantially to~~ confirming that they are independent accountants of the Company and its subsidiaries, Cinema Centers, Inc., Rialto Theatre of Westfield, Inc., C▇▇▇▇▇▇▇ Theatre, Inc. and K&G Theatres LLC, and within the meaning of the Act and the 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 December 31, 2011, and as at December 31, 2011 stating in effect that: (i) they are an independent registered public accounting firm with respect to the Company and its subsidiaries, Cinema Supply, Inc., Rialto Theatre of Westfield, Inc., C▇▇▇▇▇▇▇ Theatre, Inc. and K&G Theatres LLC, within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Act and the rules and regulations of the Commission thereunder and the Public Company Accounting Oversight Board (“the PCAOB”) and they are not in violation of the auditor independence requirements of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) in their opinion the audited financial statements and financial statement schedules included 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 related published rules and regulations adopted by the Commission; (iii) on the basis of performing procedures specified by the PCAOB in accordance with the standards established under Statement on Auditing Standards No. 100 on the unaudited interim financial information of the Company and its subsidiaries for the three and six-month periods ended December 31, 2011, and as at December 31, 2011; a reading of the minutes of the meetings of the shareholders, directors and audit 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 transactions and events subsequent to June 30, 2011, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included 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 registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus; and (2) any unaudited pro forma combined financial information included in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; (iv) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries with respect to the period subsequent to December 31, 2011, reading the unaudited pro forma consolidated balance sheet as of June 30, 2011 and December 31, 2011, and the six-month period ended December 31, 2011, included in the Registration Statement and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Comp

Appears in 3 contracts

Sources: Underwriting Agreement (Digital Cinema Destinations Corp.), Underwriting Agreement (Digital Cinema Destinations Corp.), Underwriting Agreement (Digital Cinema Destinations Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(kk), (ll) and (mm) or 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 ~~Teekay Parties~~ Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company and the Selling Stockholders made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company and the Selling Stockholders in all material respects of their respective obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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) 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 and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (ci) The Company and the KKR Selling Stockholders shall have requested and caused ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the ~~Company~~Company and the KKR Selling Stockholders, to ~~have furnished~~ furnish to the Representatives ~~their written opinion~~an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and ~~addressed to the Representatives,~~ in form and substance reasonably satisfactory to the Representatives, ~~substantially to the effect that:~~as set forth in Exhibit B hereto;

Appears in 3 contracts

Sources: Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.)

Appears in 3 contracts

Sources: Underwriting Agreement (CoreSite Realty Corp), Underwriting Agreement (CoreSite Realty Corp), Underwriting Agreement (CoreSite Realty Corp)

Appears in 3 contracts

Sources: Equity Underwriting Agreement (Patriot Coal CORP), Equity Underwriting Agreement (Patriot Coal CORP), Equity Underwriting Agreement (Patriot Coal CORP)

Appears in 3 contracts

Sources: Underwriting Agreement (Genocea Biosciences, Inc.), Underwriting Agreement (Genocea Biosciences, Inc.), Underwriting Agreement (Genocea Biosciences, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (TESARO, Inc.), Underwriting Agreement (TESARO, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (TESARO, Inc.), Underwriting Agreement (TESARO, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any ~~Option Closing~~ Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company and the Selling Stockholders made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company and the Selling Stockholders of their respective obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, shall have been filed in the 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) ~~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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ~~▇▇▇▇▇▇,~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ (New York) LLP~~, ~~special ▇▇▇▇▇▇▇▇ Islands~~ L.L.P., counsel for the ~~Company~~Company and the Selling Stockholders, to have furnished to the Representatives their ~~written opinion~~opinions, dated the ~~Closing~~ Settlement Date and addressed to the Representatives, substantially in the forms of Exhibit C and Exhibit D attached hereto. 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 New York, the state of Delaware, 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in Exhibits C and D shall also include any supplements thereto at the Closing Date. (c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLP, counsel for the Underwriters, such opinion or opinions, dated the Settlement Date and addressed to the Representatives, 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 Representatives may reasonably require, and the Company and each Selling Stockholder 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 Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Settlement Date, 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, and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Settlement Date with the same effect as if made on the Settlement 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 Settlement Date; (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; (iii) they have examined the Registration Statement, the Prospectus and the Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (2) the Prospectus, as of its date and on the applicable Settlement Date, and the Disclosure Package, as of the Execution Time, did not and do not include any untrue statement of a material fact and did not and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and (iv) since the date of the 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 set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such Selling Stockholder, in the case of a Selling Stockholder that is a natural person, or by an authorized representative of such Selling Stockholder reasonably satisfactory to the Representatives, in the case of a Selling Stockholder that is an entity, dated the Settlement Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Settlement Date to the same effect as if made on the Settlement Date. (f) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at any Settlement Date, letters, dated respectively as of the Execution Time and as of such Settlement Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants 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 unaudited interim financial information of the Company for the nine-month periods ended September 30, 2016 and 2015 and as of September 30, 2016, in accordance with AU 722 and stating in effect that: (i) in their opinion the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus and reported on by them comply as to form with the applicable 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 and its Subsidiaries; their limited review, in accordance with standards established under AU 722, of the unaudited interim financial information for the nine-month periods ended September 30, 2016 and 2015 and as of September 30, 2016; 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 committees of the Company and the 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 transactions and events subsequent to September 30, 2016, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus; (2) with respect to the period subsequent to September 30, 2016, there were, at a specified date not more than five days prior to the date of the letter, any change in capital stock, increase in long-term debt, or any decreases in consolidated net current assets or members’ equity of the Company as compared with amounts shown on the September 30, 2016, unaudited condensed consolidated balance sheet included in the Registration Statement, or for the period from October 1, 2016 to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in consolidated total revenues, net income (loss) or net income (loss) per share, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; (3) the information included in the Registration Statement, the Preliminary Prospectus and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (iii) 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 and its Subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus, including the information set forth under the caption “Capitalization” in the Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Company and its Subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. (g) The Underwriters shall have received on each of the dates hereof, any Settlement Date, a letter dated the date hereof or such Settlement Date, as applicable, in form and substance reasonably satisfactory to the Underwriters, of ▇▇▇▇▇ ▇▇▇▇▇. (h) 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 Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any 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 change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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 sole judgment of the Representatives, ~~substantially~~ 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) As of the Closing Date, all transactions described in the Preliminary Prospectus under the heading “Corporate Reorganization” shall have been completed in the manner described therein, and the Reorganization will be effective and valid in accordance with the laws of the State of Delaware. (j) The Company has no debt securities or preferred stock that is rated by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the Exchange Act). (k) Subsequent to the Execution Time, there shall not have occurred any of the following: (i) (A) trading in securities generally on any securities exchange that has registered with the Commission under Section 6 of the Exchange Act (including the NYSE, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market), or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect ~~that:~~of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on such Settlement Date on the terms and in the manner contemplated in the Prospectus. (l) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives. (m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Selling Stockholder and each of the individuals listed on Schedule V hereto. (n) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each 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 office of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 4200, Houston, Texas 77002 on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (Jagged Peak Energy Inc.), Underwriting Agreement (Jagged Peak Energy Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(kk), (ll) and (mm) or 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company in all material respects of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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) 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 and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (ci) The Company shall have requested and caused ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the Company, to ~~have furnished~~ furnish to the Representatives ~~their written opinion~~an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and ~~addressed to the Representatives,~~ in form and substance reasonably satisfactory to the Representatives, ~~substantially to the effect that:~~as set forth in Exhibit C hereto;

Appears in 2 contracts

Sources: Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (GSC Acquisition Co), Underwriting Agreement (GSC Acquisition Co)

Appears in 2 contracts

Sources: Underwriting Agreement (Merus N.V.), Underwriting Agreement (Merus N.V.)

Appears in 2 contracts

Sources: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)

Appears in 2 contracts

Sources: Underwriting Agreement (Reata Pharmaceuticals Inc), Underwriting Agreement (Reata Pharmaceuticals Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Magna International Inc), Underwriting Agreement (Magna International Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm Securities and the Option Securities, as the case may be,~~ Shares shall be subject to the accuracy of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained herein as of the ~~Execution Time~~date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and ~~any Option~~ as of the Closing ~~Date pursuant to Section 3 hereof~~Date, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no 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 no proceedings for that purpose shall have been instituted or threatened; and any Final Prospectus shall have been filed or mailed for filing with the Commission within the time period prescribed by the Commission. (b) ~~All corporate, partnership and limited liability company proceedings and other legal matters incident~~ The Company shall have furnished to the ~~authorization~~Representatives the opinion of White & Case LLP, counsel for the Company, dated the Closing Date substantially in the form ~~and validity~~ attached hereto as Exhibit A. (c) The Company shall have furnished to the Representatives the opinion of ~~this Agreement~~White & Case LLP, counsel for the ~~Class A Common Stock~~Company, dated the ~~Registration Statement and the Final Prospectus~~Closing Date, ~~and all other legal matters relating~~ as to ~~this Agreement and transactions contemplated hereby~~ certain intellectual property matters. (d) The Representatives shall ~~be reasonably satisfactory in all material respects to~~ have received from counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel ~~all~~ such documents ~~and information that~~ as they ~~may reasonably~~ request ~~to enable~~ for the purpose of enabling them to pass upon such matters. (ce) The Company shall have ~~requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands counsel for~~ furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or a Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement and that to the best of their knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) since the date of the most recent financial statements included in the Final Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its Subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus. (f) At the Closing Date, Ernst & Young LLP shall have furnished to the Representatives ~~their written opinion~~a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing ~~Date and addressed to the Representatives~~Date, in form and substance ~~reasonably~~ satisfactory to the Representatives~~, substantially~~ . (g) Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been (i) any 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 change, in or affecting the earnings, business or properties of the Company and its subsidiaries the effect ~~that:~~of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Shares as contemplated by the Registration Statement and the Final Prospectus. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company. 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 Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Aphton Corp), Underwriting Agreement (Aphton Corp)

Appears in 2 contracts

Sources: Underwriting Agreement (Magna International Inc), Underwriting Agreement (Magna International Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Cactus, Inc.), Underwriting Agreement (Cactus, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (CoreSite Realty Corp), Underwriting Agreement (CoreSite Realty Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters 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 in all material respects (to the extent any such representation or warranty is not otherwise qualified therein) on the part of the ~~Teekay Parties~~ Company contained herein as of the ~~Execution Time,~~ Applicable Time and the Closing ~~Date and any Option Closing Date pursuant to Section 3 hereof~~Date, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ~~▇▇▇▇▇▇, ▇▇~~H▇▇▇▇ ~~& ▇~~▇▇▇▇▇▇▇ ~~(New York)~~ US LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the Company, to have furnished to the Representatives their ~~written~~ opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibit A. (c) The Representatives shall have received from W▇▇▇▇▇▇ ▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the 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 such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President or any Vice President and the chief financial, chief accounting officer or treasurer of the Company, dated the Closing Date, to the effect that (i) since the respective dates as of which information is given in the Registration Statement and the Prospectus or since the date of this Agreement, there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, consolidated financial position or consolidated results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the Prospectus, (ii) the other representations and warranties of the Company contained in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) the Company has performed or complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been initiated or threatened by the Commission. (e) PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the Applicable Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Applicable Time and as of the Closing Date, in form and substance ~~reasonably~~ satisfactory to the ~~Representatives, substantially~~ Representatives containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the ~~effect that:~~financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus. (f) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (g) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, 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 Section 3(a)(62) 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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of W▇▇▇▇▇▇ ▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at 7▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date or by facsimile or electronic mail (including pdf or any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any document so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

Appears in 2 contracts

Sources: Underwriting Agreement (Colgate Palmolive Co), Underwriting Agreement (Colgate Palmolive Co)

Appears in 2 contracts

Sources: Underwriting Agreement (Johnson Controls Inc), Underwriting Agreement (Johnson Controls Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Rosetta Genomics Ltd.), Underwriting Agreement (Rosetta Genomics Ltd.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(ll), (mm) and (nn) or 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company in all material respects of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, shall have been filed in the 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) 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 and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special~~ counsel for the Company, to furnish to the Representative an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and in form and substance reasonably satisfactory to the Representative, as set forth in Exhibit C hereto. (c) The Representative shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~Islands~~ LLP, counsel for the ~~Company~~Underwriters, an opinion letter and negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and addressed to the Representative, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the ~~Representatives their written opinion~~Underwriters a certificate of the Company, signed by (x) the chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date ~~and addressed~~ or any settlement date, as the case may be, to the ~~Representatives~~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: (1) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except in the case of Section 1 (ll), (mm) and (nn) or to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) at the Execution Time and on the Closing Date or any settlement date, as the case may be, 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 hereunder at or prior to the Closing Date or any settlement date, as the case may be; (2) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (3) 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 or pursuant to Section 8A under the Act have been instituted or, to the Company’s knowledge, threatened. (e) At the Execution Time and at the Closing Date or any settlement date, as the case may be, the Company shall have requested and caused KPMG LLP to furnish to the Underwriters a “comfort” letter, dated as of the Execution Time, and a bring-down “comfort letter,” dated as of the Closing Date or any settlement date, as the case may be, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~substantially~~ confirming that they are independent registered public accountants within the meaning of the Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the ~~effect that:~~audited and unaudited financial statements and other financial and accounting information of the Company contained in the Disclosure Package and the Prospectus, including any supplement thereto at the date of the applicable letter.

Appears in 2 contracts

Sources: Underwriting Agreement (BrightSpring Health Services, Inc.), Underwriting Agreement (BrightSpring Health Services, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Magna International Inc), Underwriting Agreement (Magna International Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Securities ~~and the Option Securities, as the case may be,~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained herein as of the ~~Execution Time,~~ date hereof and the Closing ~~Date and any Option Closing Date pursuant to Section 3 hereof~~Date, to the accuracy of ~~the~~ any material statements ~~of the Teekay Parties~~ made in any ~~certificates delivered pursuant~~ certificates, opinions, affidavits, written statements or letters furnished to the ~~provisions hereof,~~ Representatives or to the performance by the Teekay Parties of their obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed in the 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) 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6, to the performance by the Company of its respective obligations hereunder and to the following additional conditions: (a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than 5:00 p.m., New ~~York~~York City time, on the second business day following the date of this Agreement or such later date and time as shall be consented to in writing by the Representatives. (b) ~~LLP~~No order suspending the effectiveness of the Registration Statement, ~~special~~ as amended from time to time, or suspending the qualification of the Indenture, shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives. (c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering and delivery of the Securities as contemplated by the Registration Statement and the Final Prospectus. (d) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day of the Closing Date, to the effect that: (i) The Company has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus. (ii) The Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus. (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; and the Securities have been duly authorized, executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery in accordance with the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; provided however, that the foregoing is 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) and by an implied covenant of good faith and fair dealing. (iv) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated in this Agreement, except for (1) such consents, approvals, authorizations or orders as have been obtained under the Securities Act and such as may be required under the Exchange Act and the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, and (2) the qualification of the Indenture under the Trust Indenture Act, which has been obtained. (v) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules. (vi) To the best of such counsel's knowledge, neither the Company nor its Named Subsidiary is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole. (vii) This Agreement and, to the extent applicable, the Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and any Delayed Delivery Contracts by the Company will not conflict with, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets of the Company or its Named Subsidiary pursuant to the terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or its Named Subsidiary is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or its Named Subsidiary or any order, rule or regulation known to such counsel of any court or governmental agency having jurisdiction over the Company, its Named Subsidiary or any of their respective properties, the effect of which would be material to the Company and its subsidiaries taken as a whole. (viii) The Registration Statement has become effective under the Securities Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission. (ix) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements or other financial or statistical data or the Form T-1 of the Trustee under the Trust Indenture Act included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules. (x) If the Securities are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with the NYSE, and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. (xi) The Named Subsidiary is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus. Each of the Company and its Named Subsidiary is duly qualified to do business as a foreign corporation, is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a material adverse effect on the Company and its subsidiaries taken as a whole. (xii) All the outstanding shares of capital stock of the Company's Named Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors' qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests. (xiii) Such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is required to be disclosed in the Final Prospectus which is not disclosed and correctly summarized therein. Such opinion shall also contain a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Final Prospectus (except as to those matters stated in paragraph (ii) of such opinion), such counsel has no reason to believe that (i) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion need be expressed as to the financial statements or other financial or statistical data or the Form T-1 included or incorporated by reference therein). In rendering such opinion, such counsel may rely upon opinions of local counsel satisfactory to the Representatives for matters not governed by New York law and may rely as to matters of fact, to the extent he deems proper, upon certificates or affidavits of officers of the Company, the Trustee and public officials. Such counsel may rely on a certificate of the Trustee with respect to the execution of the Securities by the Company and the authentication thereof by the Trustee. (e) The Representatives shall have received from Underwriters' Counsel such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date. (ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened. (x) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (y) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the effective date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been so set forth. 14 (g) At the Closing Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letter, dated the day of the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and in form and substance satisfactory to the Representatives, stating in effect that: (i) In their opinion, the consolidated financial statements of the Company and its subsidiaries, and the supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder. (ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇, carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and ▇▇▇▇▇▇, and inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the Company and its subsidiaries, as to transactions and events subsequent to the date of the most recent audited consolidated financial statements included in the Registration Statement and the Final Prospectus, nothing came to their attention that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the published instructions, rules and regulations thereunder. (B) the unaudited capsule information of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company from which it was derived or was not determined on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectus. (C) (I) as of the latest date as of which the Company and its subsidiaries have monthly financial statements, there was any decrease in the capital stock, additional paid-in capital or related earnings, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, (II) with respect to the period subsequent to the date of the most recent financial statements included in the Registration Statement and the Final Prospectus and extending through the latest date as of which the Company and its subsidiaries have monthly financial statements, there was a consolidated net loss or (III) with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ ~~Islands counsel for~~ determined pursuant to Commission Rule 15c3-1 and shown in the ~~Company~~most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5, ~~to have furnished~~ there has been any decrease in such amounts as compared with the amounts shown in the most recent consolidated financial statements included in the Registration Statement and the Final Prospectus; (D) as of a specified date not more than three business days prior to the ~~Representatives their written opinion~~date of the letter, ~~dated~~ there was any decrease in the ~~Closing Date~~ capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and ~~addressed to~~ its subsidiaries, as compared with the ~~Representatives~~amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; except in all instances for increases or decreases set forth in such letter, in ~~form and substance reasonably satisfactory to~~ which case the ~~Representatives, substantially to the effect that:~~letter shall be a

Appears in 2 contracts

Sources: Underwriting Agreement (Lehman Brothers Holdings Capital Trust Iii), Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)

Appears in 2 contracts

Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(ll), (mm) and (nn) or 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company in all material respects of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, shall have been filed in the 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) 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 and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special~~ counsel for the Company, to furnish to the Representative an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and in form and substance reasonably satisfactory to the Representative, as set forth in Exhibit C hereto. (c) The Representative shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~Islands~~ LLP, counsel for the ~~Company~~Underwriters, an opinion letter and negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and addressed to the Representative, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the ~~Representatives their written opinion~~Underwriters a certificate of the Company, signed by (x) the chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date ~~and addressed~~ or any settlement date, as the case may be, to the ~~Representatives~~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: (1) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except in the case of Section 1 (ll), (mm) and (nn) or to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) at the Execution Time and on the Closing Date or any settlement date, as the case may be, 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 hereunder at or prior to the Closing Date or any settlement date, as the case may be; (2) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (3) 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 or pursuant to Section 8A under the Act have been instituted or, to the Company’s knowledge, threatened. (e) At the Execution Time and at the Closing Date or any settlement date, as the case may be, the Company shall have requested and caused KPMG LLP to furnish to the Underwriters a “comfort” letter, dated as of the Execution Time, and a bring-down “comfort letter,” dated as of the Closing Date or any settlement date, as the case may be, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~substantially~~ confirming that they are independent registered public accountants within the meaning of the Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information of the Company contained in the Disclosure Package and the Prospectus, including any supplement thereto at the date of the applicable letter. (h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change or development involving a prospective change, in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, and after giving effect ~~that:~~to the Transaction, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which is, or would reasonably be expected to become, in the judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) On the Closing Date or any settlement date, as the case may be, the Securities shall have been approved for listing and admitted and authorized for trading on the Exchange, subject only to official notice of issuance. (j) At or prior to the Execution Time, the Company shall have caused each officer, director and stockholder of the Company listed on Exhibit A-1 hereto to furnish to the Representative, a letter addressed to the Representative substantially in the form of Exhibit A hereto. (k) Prior to the Closing Date or any settlement date, as the case may be, the Company shall have taken all action reasonably required to be taken by it to have the Securities declared eligible for clearance and settlement through DTC. (l) Prior to the Closing Date or any settlement date, as the case may be, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative 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 the Representative and counsel for the Underwriters. The documents required to be delivered by this Section 6 will be available for inspection at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Business Day prior to the Closing Date or any settlement date, as the case may be.

Appears in 2 contracts

Sources: Underwriting Agreement (BrightSpring Health Services, Inc.), Underwriting Agreement (BrightSpring Health Services, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Zillow Inc), Underwriting Agreement (Zillow Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Securities ~~and the Option Securities, as the case may be,~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained herein as of the ~~Execution Time,~~ date hereof and the Closing ~~Date and any Option Closing Date pursuant to Section 3 hereof~~Date, to the accuracy of ~~the~~ any material statements ~~of the Teekay Parties~~ made in any ~~certificates delivered pursuant~~ certificates, opinions, affidavits, written statements or letters furnished to the ~~provisions hereof,~~ Representatives or to the performance by the Teekay Parties of their obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed in the 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) 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (~~New York~~"Underwriters' Counsel") ~~LLP, special ▇▇▇▇▇▇▇▇ Islands counsel for the Company~~pursuant to this Section 6, to the performance by the Company of its respective obligations hereunder and to the following additional conditions: (a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the second business day following the date of this Agreement or such later date and time as shall be consented to in writing by the Representatives. (b) No order suspending the effectiveness of the Registration Statement, as amended from time to time, or suspending the qualification of the Indenture, shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives. (c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering and delivery of the Securities as contemplated by the Registration Statement and the Final Prospectus. (d) The Company shall have furnished to the Representatives ~~their written opinion~~the opinion of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day of the Closing Date, to the effect that: (i) The Company has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus. (ii) The Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus. (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; and the Securities have been duly authorized, executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery in accordance with the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; provided however, that the foregoing is 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) and by an implied covenant of good faith and fair dealing. (iv) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated in this Agreement, except for (1) such consents, approvals, authorizations or orders as have been obtained under the Securities Act and such as may be required under the Exchange Act and the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, and (2) the qualification of the Indenture under the Trust Indenture Act, which has been obtained. (v) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules. (vi) To the best of such counsel's knowledge, neither the Company nor its Named Subsidiary is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole. (vii) This Agreement and, to the extent applicable, the Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and any Delayed Delivery Contracts by the Company will not conflict with, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets of the Company or its Named Subsidiary pursuant to the terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or its Named Subsidiary is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or its Named Subsidiary or any order, rule or regulation known to such counsel of any court or governmental agency having jurisdiction over the Company, its Named Subsidiary or any of their respective properties, the effect of which would be material to the Company and its subsidiaries taken as a whole. (viii) The Registration Statement has become effective under the Securities Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission. (ix) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements or other financial or statistical data or the Form T-1 of the Trustee under the Trust Indenture Act included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules. (x) If the Securities are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with the NYSE, and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. (xi) The Named Subsidiary is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus. Each of the Company and its Named Subsidiary is duly qualified to do business as a foreign corporation, is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a material adverse effect on the Company and its subsidiaries taken as a whole. (xii) All the outstanding shares of capital stock of the Company's Named Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors' qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests. (xiii) Such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is required to be disclosed in the Final Prospectus which is not disclosed and correctly summarized therein. Such opinion shall also contain a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Final Prospectus (except as to those matters stated in paragraph (ii) of such opinion), such counsel has no reason to believe that (i) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion need be expressed as to the financial statements or other financial or statistical data or the Form T-1 included or incorporated by reference therein). In rendering such opinion, such counsel may rely upon opinions of local counsel satisfactory to the Representatives for matters not governed by New York law and may rely as to matters of fact, to the extent he deems proper, upon certificates or affidavits of officers of the Company, the Trustee and public officials. Such counsel may rely on a certificate of the Trustee with respect to the execution of the Securities by the Company and the authentication thereof by the Trustee. (e) The Representatives shall have received from Underwriters' Counsel such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and ~~addressed~~ 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 ~~Representatives~~Closing Date. (ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened. (x) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (y) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the effective date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been so set forth. 14 (g) At the Closing Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letter, dated the day of the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and in form and substance ~~reasonably~~ satisfactory to the Representatives, ~~substantially to the~~ stating in effect that: (i) In their opinion, the consolidated financial statements of the Company and its subsidiaries, and the supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder. (ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and Lehman, carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and Lehman, and inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the Company and its subsidiaries, as to transactions and events subsequent to the date of the most recent audited consolidated financial statements included in the Registration Statement and the Final Prospectus, nothing came to their attention that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the published instructions, rules and regulations thereunder. (B) the unaudited capsule information of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company from which it was derived or was not determined on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectus. (C) (I) as of the latest date as of which the Company and its subsidiaries have monthly financial statements, there was any decrease in the capital stock, additional paid-in capital or related earnings, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, (II) with respect to the period subsequent to the date of the most recent financial statements included in the Registration Statement and the Final Prospectus and extending through the latest date as of which the Company and its subsidiaries have monthly financial statements, there was a consolidated net loss or (III) with respect to the amounts of net capital or excess net capital of Lehman determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of Lehman filed pursuant to Commission Rule 17a-5, there has been any decrease in such amounts as compared with the amounts shown in the most recent consolidated financial statements included in the Registration Statement and the Final Prospectus; (D) as of a specified date not more than three business days prior to the date of the letter, there was any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; except in all instances for increases or decreases set forth in such letter, in which case the letter shall be a

Appears in 2 contracts

Sources: Underwriting Agreement (Lehman Brothers Holdings Capital Trust V), Underwriting Agreement (Lehman Brothers Holdings Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Eloxx Pharmaceuticals, Inc.), Underwriting Agreement (Eloxx Pharmaceuticals, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement ~~thereto, shall~~ thereto have been filed in the 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) under the ~~Act~~ 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused H▇▇▇▇ & H▇▇▇▇▇▇ L.L.P., U.S. counsel for the Company, and C▇▇▇▇▇▇ ▇▇▇▇▇, ~~▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands~~ Canadian counsel for the Company, to have furnished to the Representatives their ~~written opinion~~opinions substantially in the forms set forth in Exhibits D-1 and D-2 hereto, respectively, dated the Closing Date and any settlement date and addressed to the Representatives. (c) The Representatives shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, 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 such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date, 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) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date and any settlement date with the same effect as if made on the Closing Date and any settlement 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 Date and any settlement date; (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 or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, (e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date and any settlement date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance ~~reasonably~~ satisfactory to the Representatives, ~~substantially~~ confirming that its an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating to the effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final 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 December 31, 2006, and as at December 31, 2006; 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 shareholders, directors and audit and corporate governance 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 transactions and events subsequent to June 30, 2006, 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, the Preliminary Prospectus and the Final 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 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 the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; (2) with respect to the period subsequent to December 31, 2006, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company as compared with the amounts shown on the December 31, 2006 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; (3) the information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the applicable disclosure requirements of Regulation S-K; and 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 and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Recent Developments,” “Dividend History” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information in Items 1, 1A, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1A, 2 and 3 of the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and the information in Items 1.01, 8.01 and 9.01 of the information in the Company’s Current Reports on Form 8-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (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 amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any Material Adverse Effect, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Final Prospectus (exclusive of any amendment or supplement thereto). (g) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) The Securities shall have been approved for quotation on the NASDAQ Global Select Market and the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives. (i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A to this Agreement from (i) each officer and director of the Company, (ii) IAMGOLD Corporation and (iii) M▇▇▇ ▇▇▇▇▇▇, addressed to the Representatives. (j) The Underwriters having received duly completed and executed Subscription Agreements from purchasers in the Canadian Jurisdictions by no later than 5:00 p.m. (New York time) on April 9, 2007. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (Royal Gold Inc), Underwriting Agreement (Royal Gold Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)

Appears in 2 contracts

Sources: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm Securities and the Option Securities, as the case may be,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date pursuant to Section 3 hereof~~in this Agreement, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any applicable officers’ certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Final Prospectus, and any supplement thereto,~~ No stop order suspending the effectiveness of the related Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Company threatened, by the Commission. (b) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Program Documents to which the Company is a party, and that, to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and Program Documents to which the Company is a party are true and correct in all material respects, and the Company has 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) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Program Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Program Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Program Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Program Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Program Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, GECS, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Offered Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Offered Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement has become effective under the Act, and the Prospectus has been filed with the Commission pursuant to Rule 424(b) thereunder in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for~~ best of such ~~filings by Rule 433; and~~ counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use shall have been issued~~ and the Prospectus and no proceedings for that purpose ~~shall~~ have been ~~instituted or threatened.~~instituted; (bix) ~~All corporate, partnership~~ the statements in the Base Prospectus under the heading “Material Legal Aspects of the Receivables” and ~~limited liability company proceedings~~ “ERISA Considerations” and ~~other legal matters incident~~ the statements in the Prospectus Supplement under the heading “Structural Summary—ERISA Considerations” to the ~~authorization~~extent they constitute matters of law or legal conclusions with respect thereto, ~~form and validity~~ to the best of ~~this Agreement,~~ such counsel’s knowledge are correct in all material respects; (x) the ~~Class A Common Stock, the Registration Statement~~ Program Documents and the ~~Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory~~ Offered Notes conform in all material respects to ~~counsel for~~ the ~~Underwriters~~descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended and complies as to form with the Trust Indenture Act of 1939 and the rules and regulations of the Commission thereunder; and (xii) each of the Registration Statement, as of its effective date, and the ~~Company shall have furnished~~ Prospectus, as of its date, complied as to form in all material respects with the requirements of the Act and the rules and regulations under the Act, except that such counsel ~~all documents~~ need not express any opinion as to the financial and ~~information that they may reasonably request~~ statistical data included therein or excluded therefrom or the exhibits to ~~enable them~~ the Registration Statement and, except as, and to ~~pass upon~~ the extent set forth in paragraphs (ix) and (x), such ~~matters~~counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus. (cd) The ~~Company~~ Representatives shall have ~~requested~~ received on the Closing Date a signed opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and ~~caused~~ Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Servicing Agreement and the Receivables Sale Agreement; (ii) the Bank has all requisite corporate power and authority to execute, deliver and perform its obligations under the Servicing Agreement and the Receivables Sale Agreement and to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of the Servicing Agreement and the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) each of the Servicing Agreement and the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of each of the Servicing Agreement and the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President and Counsel, Capital Markets for GE Consumer Finance, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) each of GECC and GECS is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party in the various capacities set forth therein; (ii) the execution, delivery and performance by each of GECC and GECS of the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation by GECC and GECS of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC and GECS; (iii) the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party have been duly and validly executed and delivered by GECC and GECS; and (iv) the execution and delivery by each of GECC and GECS of the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC or, with respect to the Contribution Agreement, GECS, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC or, with respect to the Contribution Agreement, GECS is a party or by which GECC or, with respect to the Contribution Agreement, GECS is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC or, with respect to the Contribution Agreement, GECS. (f) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇▇ (New York) LLP~~Finger, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the ~~Company~~Owner Trustee, ~~to have furnished~~ in form and substance reasonably satisfactory to the Representatives ~~their written opinion~~and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, ~~substantially~~ dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Offered Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency of the State of Delaware, other than the filing of the certificate of trust with the Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) under § 3805 (b) and (c) of the Delaware Statutory Trust Act, (A) no creditor of any Certificateholder shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to th

Appears in 2 contracts

Sources: Underwriting Agreement (RFS Holding LLC), Underwriting Agreement (RFS Holding LLC)

Appears in 2 contracts

Sources: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ obligation of ~~the Underwriters~~ each Underwriter to purchase the ~~Firm~~ Securities ~~and the Option Securities, as the case may be,~~ under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained herein as of the ~~Execution Time~~date hereof, as of the date of the Time of Sale Prospectus, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date with respect to such Securities (including the filing of any document incorporated by reference therein) and ~~any Option~~ as of the Closing Date ~~pursuant~~ with respect to ~~Section 3 hereof~~such Securities, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, as amended from time to time, or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; all requests by the Commission for additional information shall have been complied with to the satisfaction of the Underwriters; and the Prospectus with respect to such Securities shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) not later than the Commission’s close of business on the second day following the execution and delivery of this Agreement or, if applicable, such other time as may be required by Rule 424(b). (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the 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. (c) The Company shall have requested and caused~~ the Underwriters the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire, Assistant Vice President and Senior Counsel of the Company, dated as of the Closing Date, in substantially the form attached hereto as Annex I-2. (c) The Underwriters shall have received an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, in substantially the form attached hereto as Annex I-1. (d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special ▇▇▇~~counsel for the Underwriters, such opinion or opinions, dated as of the Closing Date, with respect to the issuance and sale of the Securities, the Deposit Agreement, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters. (e) The Company shall have furnished to the Underwriters a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, an Executive Vice President or a Senior Vice President and the principal financial or accounting officer of the Company, dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Time of Sale Prospectus, the Prospectus and this Agreement and that to the best of their knowledge after reasonable investigation: (i) The representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (ii) No stop order suspending the effectiveness of the Registration Statement, as amended, 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 latest audited financial statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectus, neither the Company nor any of its consolidated subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and there has been no material adverse change nor any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its consolidated 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 the Time of Sale Prospectus and the Prospectus. (f) At the time this Agreement is executed and at the Closing Date, ▇▇▇▇▇ ~~Islands counsel~~ & Young LLP, as independent accountants for the Company, to shall have furnished to the ~~Representatives their written opinion~~Underwriters a letter or letters (which may refer to letters previously delivered to the Underwriters), dated such date, in substantially the form attached hereto as ▇▇▇▇▇ ▇▇. (g) Subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have occurred (i) any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus or (ii) any material change or decrease in those items specified in the letter or letters referred to in paragraph (f) of this Section 5 the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus. (h) Prior to the Closing Date, the Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request. (i) On or after the Applicable Time and subsequent to the execution and delivery of this Agreement, and prior to the Closing Date there shall not have occurred any downgrading, nor shall notice have been given of any intended or potential downgrading or placement “under review” with negative implications or with no indication of the direction of the possible change of the rating accorded any securities of, or guaranteed by, the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act. (j) No action shall have been taken and ~~addressed to~~ no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the ~~Representatives~~Closing Date, prevent the issuance or sale of the Preferred Shares or the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Preferred Shares or the Securities. (k) The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and any Significant Subsidiary in their respective jurisdictions of organization, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions. (l) The Designation shall have been filed with the Secretary of State of the State of Indiana and shall have become effective. If any of the conditions specified in this Section 5 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 ~~reasonably satisfactory~~ to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date, by the Representatives~~, substantially~~ . Notice of such cancellation shall be given to the ~~effect that:~~Company in writing or by telephone or telegraph confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Lincoln National Corp), Underwriting Agreement (Lincoln National Corp)

Appears in 2 contracts

Sources: Underwriting Agreement (Singulex Inc), Underwriting Agreement (Singulex Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Transcanada Pipelines LTD)

Appears in 1 contract

Sources: Underwriting Agreement (Ovid Therapeutics Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters 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 ~~Teekay Parties~~ Company contained herein as of the ~~Execution Time~~Applicable Time of Sale, the Execution Time and the Closing ~~Date and any Option Closing Date pursuant to Section 3 hereof~~Date, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed in the 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~~ 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 by the Commission objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ ▇▇▇▇▇ LLP, ~~special ▇▇~~counsel for the Company, shall have furnished to the Representatives its opinion, dated the Closing Date, and addressed to the Representatives, to the effect that: (i) the Company has been duly organized and is validly subsisting as a corporation under the laws of the State of New Jersey, with full corporate power and authority under its articles of incorporation to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; (ii) the Securities are in due and proper form; the issue and sale of the Securities by the Company in accordance with the terms of this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the NJBPU. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Trustee against payment therefor, will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms subject to (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law); (iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act; (iv) the Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Company described therein as subject to the lien thereof (other than properties expressly excepted therefrom, properties properly released from the lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the extent that it may be perfected by filing under the Uniform Commercial Code, a perfected security interest in such of the personal property of the Company as is described in the Indenture, whether such personal property is now owned or hereinafter acquired by the Company (other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as defined in the Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the Uniform Commercial Code; after-acquired property subject to Section 552 of the Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and contract rights or general intangibles which by their terms, or by law, are not assignable); such counsel need express no opinion as to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the validity or perfection of any security interest to be maintained; (v) this Agreement has been duly authorized, executed and delivered by the Company; (vi) such counsel is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by this Agreement, the Indenture and the Securities and, to the knowledge of such counsel, there are no material pending legal proceedings to which the Company or any subsidiary is a party and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any Preliminary Prospectus and the Final Prospectus under the heading “Description of the Bonds and First and Refunding Mortgage” fairly summarize the matters therein described; (vii) the NJBPU has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, filing with or order of any court or state or federal governmental agency or body is required in connection with the transactions contemplated in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act, the Trust Indenture Act, and from the NJBPU, and such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Underwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained; (viii) the Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice by the Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date the Registration Statement originally became effective under the Act, and together with the Preliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case 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; (ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as amended; (x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the fulfillment of the terms hereof or thereof do not, and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which their property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the fiscal year ended December 31, 2020 and Forms 8-K filed with the Commission during the period between January 1, 2021 and the Closing Date or result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the Company or any of its subsidiaries pursuant to any item referred to in this clause (3) (other than the lien of the Indenture); (xi) the discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the assumptions stated or referred to therein, and such counsel shall confirm that these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and (xii) such counsel has no reason to believe that (1) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (2) as of the Applicable Time of Sale, the Disclosure Package contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (3) as of its date and on the Closing Date, the Final Prospectus 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 information contained therein, as to which such counsel need express no opinion); 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. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. (c) [Intentionally omitted.] (d) The Representatives shall have received from Winston & ▇▇▇▇▇▇ ~~Islands~~ LLP, counsel for the ~~Company~~Underwriters, ~~to have furnished to the Representatives their written opinion~~such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, 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 such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Winston & ▇▇▇▇▇▇ LLP may rely, as to matters governed by the laws of the State of New Jersey, upon the opinion of counsel for the Company referred to in Section 6(b). (e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice by the Commission 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 or incorporated by reference 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 contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (f) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives~~, substantially~~ . (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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any 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 change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect ~~that:~~of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Final Prospectus (exclusive of any amendment or supplement thereto). (h) During the period from the Execution Time to and including the Closing Date, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company’s debt securities or commercial paper by any “

Appears in 1 contract

Sources: Underwriting Agreement (Atlantic City Electric Co)

Appears in 1 contract

Sources: Underwriting Agreement (Lantheus Holdings, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (AltheaDx, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Brixmor Property Group Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (ExlService Holdings, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm Securities and the Option Securities, as the case may be,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date pursuant to Section 3 hereof~~in this Agreement, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any applicable officers’ certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Final Prospectus, and any supplement thereto,~~ No stop order suspending the effectiveness of the related Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Company threatened, by the Commission. (b) The Company shall have furnished to the Representative[s] a certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Program Documents to which the Company is a party, and that, to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and Program Documents to which the Company is a party are true and correct in all material respects, and the Company has 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) The Representative[s] shall have received on the Closing Date a signed opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representative[s] and counsel to the Representative[s], dated the Closing Date and addressed to the Representative[s], to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Program Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Program Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Program Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Program Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Program Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, GECS, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Offered Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Offered Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement has become effective under the Act, and the Prospectus has been filed with the Commission pursuant to Rule 424(b) thereunder in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for~~ best of such ~~filings by Rule 433; and~~ counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use shall have been issued~~ and the Prospectus and no proceedings for that purpose ~~shall~~ have been ~~instituted or threatened.~~instituted; (bix) ~~All corporate, partnership~~ the statements in the Base Prospectus under the heading “Material Legal Aspects of the Receivables” and ~~limited liability company proceedings~~ “ERISA Considerations” and ~~other legal matters incident~~ the statements in the Prospectus Supplement under the heading “Structural Summary—ERISA Considerations” to the ~~authorization~~extent they constitute matters of law or legal conclusions with respect thereto, ~~form and validity~~ to the best of ~~this Agreement,~~ such counsel’s knowledge are correct in all material respects; (x) the ~~Class A Common Stock, the Registration Statement~~ Program Documents and the ~~Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory~~ Offered Notes conform in all material respects to the descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended and complies as to form with the Trust Indenture Act of 1939 and the rules and regulations of the Commission thereunder; and (xii) each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, complied as to form in all material respects with the requirements of the Act and the rules and regulations under the Act, except that such counsel need not express any opinion as to the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the extent set forth in paragraphs (ix) and (x), such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus. (d) The Representative[s] shall have received on the Closing Date a signed opinion of [ ], counsel for the ~~Underwriters~~Bank, in form and ~~the Company shall have furnished to such counsel all documents and information that they may~~ substance reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands counsel for the Company, to have furnished satisfactory to the ~~Representatives their written opinion~~Representative[s] and counsel to the Representative[s], dated the Closing Date and addressed to the ~~Representatives~~Representative[s], to the effect that: (i) the Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Servicing Agreement and the Receivables Sale Agreement; (ii) the Bank has all requisite corporate power and authority to execute, deliver and perform its obligations under the Servicing Agreement and the Receivables Sale Agreement and to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of the Servicing Agreement and the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) each of the Servicing Agreement and the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of each of the Servicing Agreement and the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representative[s] shall have received on the Closing Date a signed opinion of [ ], in form and substance reasonably satisfactory to the ~~Representatives~~Representative[s] and counsel to the Representative[s], ~~substantially~~ dated the Closing Date and addressed to the Representative[s] to the effect that: (i) each of GECC and GECS is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party in the various capacities set forth therein; (ii) the execution, delivery and performance by each of GECC and GECS of the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation by GECC and GECS of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC and GECS; (iii) the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party have been duly and validly executed and delivered by GECC and GECS; (iv) the execution and delivery by each of GECC and GECS of the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC or, with respect to the Contribution Agreement, GECS, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC or, with respect to the Contribution Agreement, GECS is a party or by which GECC or, with respect to the Contribution Agreement, GECS is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC or, with respect to the Contribution Agreement, GECS. (f) The Representative[s] shall have received on the Closing Date a signed opinion of [ ], counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representative[s] and counsel to the Representative[s], dated the Closing Date and addressed to the Representative[s], to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representative[s] shall have received on the Closing Date a signed opinion of [ ], special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representative[s] and counsel to the Representative[s], dated the Closing Date and addressed to the Representative[s], to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Offered Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency of the State of Delaware, other than the filing of the certificate of trust with the Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) under § 3805 (b) and (c) of the Delaware Statutory Trust Act, (A) no creditor of any Certificateholder shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to the Transfer Agreement, except to the extent that the Issuer has taken action to dispose of or otherwise transfer or encumber any part

Appears in 1 contract

Sources: Underwriting Agreement (RFS Holding LLC)

Appears in 1 contract

Sources: Underwriting Agreement (Spansion Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Seacastle Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters 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 ~~Teekay Parties~~ Company, the Adviser and the Administrator contained herein as of the Execution ~~Time,~~ Time and the Closing ~~Date and any Option Closing Date pursuant to Section 3 hereof~~Date, to the accuracy of the statements of the ~~Teekay Parties~~ Company, the Adviser and the Administrator made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company, the Adviser or the Administrator of their obligations hereunder and to the following additional conditions: (a) The Final ~~Prospectus,~~ Prospectus and any ~~supplement thereto,~~ supplements thereto shall have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 54(c) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects. (b) ~~All corporate, partnership~~ The Company shall have requested and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to caused special counsel for the ~~Underwriters, and the~~ Company ~~shall~~ to have furnished to the Representatives its opinion, dated the Closing Date, and addressed to the Representatives, to the effect set forth in Exhibits ▇-▇, ▇-▇ and A-3. In rendering such opinion, such counsel ~~all documents~~ may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and ~~information that~~ may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company, the Adviser and the Administrator and public officials. References to the Final Prospectus in Exhibits ▇-▇, ▇-▇ and A-3 shall also include any supplements thereto at the Closing Date. Such opinion may ~~reasonably request to enable them to pass upon such matters~~contain customary assumptions, exclusions and limitations. (c) The Company shall have requested and caused ~~▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands~~ Maryland counsel for the Company, to have furnished to the Representatives ~~their written~~ its opinion, dated the Closing ~~Date~~ Date, and addressed to the Representatives, to the effect set forth in Exhibit B. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in Exhibit B shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (d) You shall have received on the Closing Date an opinion of counsel for the Adviser and the Administrator, dated the Closing Date, and addressed to the Representatives to the effect set forth in Exhibit C. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in Exhibit C shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (e) The Representatives shall have received from counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Preliminary Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Adviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or the President or Executive Vice President and the principal financial or accounting officer of each of the Company, the Adviser and the Administrator, as the case may be, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, any amendments or supplements thereto and this Agreement and that: (i) The representations and warranties of the Company, the Adviser or the Administrator, as the case may be, in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company, the Adviser or the Administrator, as the case may be, 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 Date; (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, the Adviser’s or the Administrator’s knowledge, as the case may be, threatened; and (iii) Since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Company) and since the date of the Final Prospectus (exclusive of any supplements thereto) (with respect to the certificates of the Adviser and the Administrator), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Adviser or the Administrator, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto). (g) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, 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 the Representatives, confirming that it is an independent accountant within the meaning of the Act and the 1940 Act and the Rules and Regulations and that it has performed a review of the unaudited interim financial information of the Company for the nine-month period ended December 31, 2014 and as at December 31, 2014, in accordance with Public Company Accounting Oversight Board AU Section 722 and stating in effect that: (i) in its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus and reported on by it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Public Company Accounting Oversight Board AU Section 722, of the unaudited interim financial information for the nine-month period ended December 31, 2014 and as at December 31, 2014, as indicated in its report dated February 5, 2015; 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 Audit and Nominating and Corporate Governance committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to December 31, 2014, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form N-2; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus; and (2) with respect to the period subsequent to December 31, 2014, there were, at a specified date not more than five days prior to the date of the letter, any material changes in the capital stock or long term debt of the Company, excluding issuances in accordance with the Company’s dividend reinvestment plan, or increase in long-term debt, as compared with the amounts shown in the December 31, 2014 unaudited statement of assets and liabilities included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, except for changes set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives. (iii) it has performed certain other specified procedures as a result of which it 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 Base Prospectus, each Preliminary Prospectus and the Final Prospectus, including the information set forth under the captions “Selected Financial Data” and “Fees and Expenses” in the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (h) The Company shall have furnished to the Representatives a certificate, dated the date hereof and the Closing Date, and addressed to the Underwriters, of its chief financial officer with respect to certain financial data contained in each Preliminary Prospectus and the Final Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives~~, substantially~~ . (i) 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), each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto) the effect ~~that:~~of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto). (j) Apollo Global Management, LLC shall have delivered to you a certificate signed by one of its senior officers in the form attached as Exhibit D. (k) Prior to the Closing Date, the Company, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities below investment grade by any “nationally recognized statistical rating organization” (as such term is defined under Section 3(a)(62) 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. (m) If any of the conditions 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 to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. (n) The documents required to be delivered by this Section 7 shall be delivered at the office of counsel for the Underwriters on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Apollo Investment Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Epizyme, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any ~~Option Closing~~ Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company and the Selling Stockholder made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the manner and within the time period required by Rule 424(b); ~~any other~~ all 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 and no proceedings for that purpose shall have been instituted or threatened. (b) ~~All corporate~~The Company shall have requested and caused ▇▇▇▇▇▇ Godward LLP, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the ~~Underwriters~~Company, ~~and the Company shall~~ to have furnished to ~~such counsel all documents~~ the Representatives their opinion, dated the Closing Date and ~~information that they may reasonably request~~ addressed to ~~enable them to pass upon such matters~~the Representatives, in form and substance approved by the Book-Running Underwriters, covering the matters set forth in Exhibit B hereto. (c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel for the Company with respect to patents and proprietary rights, to have furnished to the Representatives their opinion, dated the Closing Date, and addressed to the Representatives, in form and substance approved by the Book-Running Underwriters, covering the matters set forth in Exhibit C hereto. (d) The Company shall have requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~▇ (New York) LLP~~▇, ~~special ▇▇▇▇▇▇▇▇ Islands~~ P.C., counsel for the ~~Company~~Company with respect to regulatory matters, to have furnished to the Representatives their ~~written~~ opinion, dated the Closing Date and addressed to the Representatives, in form and substance approved by the Book-Running Underwriters, covering the matters set forth in Exhibit D hereto. (e) The Selling Stockholder shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the Selling Stockholder, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in form and substance approved by the Book-Running Underwriters, covering the matters set forth in Exhibit E hereto. (f) The Company shall have requested and caused King & Spalding LLP, counsel for the Company with respect to patents and proprietary rights, to have furnished to the Representatives their letter, dated the Closing Date and addressed to the Representatives, in form and substance approved by the Book-Running Underwriters, covering the matters set forth in Exhibit F hereto. (g) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Corporate Counsel of the Company, to have furnished to the Representatives her opinion dated the Closing Date and addressed to the Representatives, in form and substance approved by the Book-Running Underwriters, covering the matters set forth in Exhibit G hereto. (h) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, 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 Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP requests for the purpose of enabling it to pass upon such matters. (i) The Company shall have furnished to the Representatives a certificate of the Company, signed by the principal executive officer of the Company and by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure Package, the Prospectus, any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (j) The Selling Stockholder shall have furnished to the Representatives a certificate, signed by the Selling Stockholder or on its behalf by an Attorney-in-Fact (as defined in the Custody Agreement and Power of Attorney), dated the Closing Date, to the effect that the Selling Stockholder has examined the Registration Statement, the Disclosure Package, the Prospectus, any supplements or amendments thereto and this Agreement, that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date to the same effect as if made on the Closing Date and that the 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 Closing Date. (k) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, 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 reasonably satisfactory to the Representatives, ~~substantially to~~ confirming that they are independent registered public accountants within the meaning of the Act and the 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 three-month periods ended March 31, 2006 and 2005, and as at March 31, 2006 and 2005, and the three- and six-month periods ended June 30, 2006 and 2005, and as at June 30, 2006 and 2005, in accordance with procedures specified by the PCAOB for a review of interim financial information as described in AU Section 722, Interim Financial Information, and stating in effect that: (i) in their opinion the audited financial statements included in the Registration Statement, the Preliminary Prospectuses 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; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, completed in accordance with the procedures specified by the PCAOB for a review of interim financial information as described in AU Section 722, Interim Financial Information, of the unaudited interim financial information for the three-month periods ended March 31, 2006 and 2005, and as at March 31, 2006 and 2005, and the three- and six-month periods ended June 30, 2006 and 2005, and as at June 30, 2006 and 2005; 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 and the board of directors (including committees thereof) 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 transactions and events subsequent to March 31, 2006, nothing came to their attention which caused them to believe that: (A) the unaudited financial statements for the three-month periods ended March 31, 2006 and 2005 and as of March 31, 2006 included in the Registration Statement, the Preliminary Prospectuses 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 registration statements on Form S-3; and said unaudited financial statements are not in conformity with GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectuses and the Prospectus; (B) the unaudited financial statements for the three- and six-month periods ended June 30, 2006 and 2005, and as at June 30, 2006 and 2005 are not in conformity with GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements incorporated by reference in the Registration Statement, the Preliminary Prospectuses and the Prospectus; (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock, increase in long-term debt or decrease in net current assets or stockholders’ equity of the Company, as compared with amounts shown in the March 31, 2006 unaudited consolidated balance sheet included in the Registration Statement, the Preliminary Prospectuses and the Prospectus, or for the period from April 1, 2006 to such specified date there were any decreases, as compared to the corresponding period in the preceding year, in consolidated net sales or in the total or per-share amounts of income before extraordinary items or of net income, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (D) the information included in the Registration Statement, the Preliminary Prospectuses and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (iii) 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 and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectuses and the Prospectus, including the information set forth under the captions “Prospectus Supplement Summary—The Offering,” “Prospectus Supplement Summary—Summary Consolidated Financial Data,” “Use of Proceeds,” “Capitalization” and “Dilution,” in the Preliminary Prospectuses and the Prospectus and under the captions “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” in the reports on Form 10-K and Form 10-Q incorporated by reference into the Preliminary Prospectuses and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. (l) 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 Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(k) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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 sole judgment of the Representatives, 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 supplement thereto). (m) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (n) 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 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. (o) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives. (p) At the Execution Time, the Company shall have furnished to the Representatives a letter (a “Lock-Up Letter”) substantially in the form of Exhibit A hereto (with such changes as may be approved by the Book-Running Underwriters) from (i) each executive officer and director of the Company; (ii) the Selling Stockholder; (iii) Easton ▇▇▇▇ Capital Partners, L.P.; and (iv) ProMed Partners, L.P. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholder in the manner prescribed by Section 12 hereof. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Conor Medsystems Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Loxo Oncology, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company, the Adviser and the Administrator contained herein as of the Execution ~~Time,~~ Time and the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company, the Adviser and the Administrator made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company, the Adviser or the Administrator of their obligations hereunder and to the following additional conditions: (a) The Final ~~Prospectus,~~ Prospectus and any ~~supplement thereto, shall~~ supplements thereto have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 54(c) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects. (b) ~~All corporate, partnership~~ The Company shall have requested and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to caused counsel for the ~~Underwriters~~Company, ~~and the Company shall~~ to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibits ▇-▇, ▇-▇ and A-3. In rendering such opinion, such counsel ~~all documents~~ may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and ~~information that~~ may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in Exhibits ▇-▇, ▇-▇ and A-3 shall also include any supplements thereto at the Closing Date. Such opinion may ~~reasonably request to enable them to pass upon such matters~~contain customary assumptions, exclusions and limitations. (c) The Company shall have requested and caused ~~▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands~~ Maryland counsel for the Company, to have furnished to the Representatives ~~their written~~ its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibit B. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in Exhibit B shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (d) You shall have received on the Closing Date an opinion of counsel for the Adviser and the Administrator, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit C. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in Exhibit B shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (e) The Representatives shall have received from counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Adviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or the President or Executive Vice President and the principal financial or accounting officer of each of the Company, the Adviser and the Administrator, as the case may be, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, any amendments or supplements thereto and this Agreement and that: (i) The representations and warranties of the Company, the Adviser or the Administrator, as the case may be, in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company, the Adviser or the Administrator, as the case may be, 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 Date and the statements made in the Preliminary Final Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Recent Developments” are true and correct on and as of the Closing Date; (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 or the Adviser’s or the Administrator’s knowledge, as the case may be, threatened; and (iii) Since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Company) and since the date of the Final Prospectus (exclusive of any supplements thereto) (with respect to the certificates of the Adviser and the Administrator), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company or the Adviser or the Administrator, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto). (g) The Company shall have requested and caused PricewaterhouseCoopers LLC to have furnished to the Representatives, 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 ~~reasonably~~ satisfactory to the Representatives, ~~substantially to~~ confirming that it is an independent accountant within the meaning of the Act and the 1940 Act and the Rules and Regulations and that it has performed a review of the unaudited interim financial information of the Company for the three-month period ended June 30, 2007 and as at June 30, 2007, in accordance with Statement on Auditing Standards No. 100 and stating in effect that: (i) in its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus and reported on by it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three-month period ended June 30, 2007 and as at June 30, 2007, as indicated in its report dated August 8, 2007; 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 Audit and Nominating and Corporate Governance committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to June 30, 2007, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form N-2; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; and (2) with respect to the period subsequent to June 30, 2007, there were, at a specified date not more than five days prior to the date of the letter, any changes in the capital stock of the Company, increases in long-term debt of the Company, or decreases in net assets or stockholders’ equity of the Company as compared with the amounts shown in the June 30, 2007 unaudited statement of assets and liabilities included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, except for changes, increases or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives. (iii) it has performed certain other specified procedures as a result of which it 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 Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, including the information set forth under the captions “Selected Condensed Financial and Other Data” and “Fees and Expenses” in the Preliminary Final Prospectus and the Final Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (h) 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 (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Basic Prospectus, each Preliminary Final Prospectus 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 sole judgment of the Representatives, 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 Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto). (i) Apollo Global Management, LLC shall have delivered to you a certificate signed by one of its senior officers in the form attached as Exhibit D. (j) Prior to the Closing Date, the Company, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (k) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ; and satisfactory evidence of such actions shall have been provided to the Representatives. (l) If any of the conditions 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 to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. (m) The documents required to be delivered by this Section 7 shall be delivered at the office of counsel for the Underwriters on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Apollo Investment Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Cit Group Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(nn), (oo) and (pp) or 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 ~~Teekay Parties~~ Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company and the Selling Stockholders made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company and the Selling Stockholders in all material respects of their respective obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, shall have been filed in the 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) 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 and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representatives an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and in form and substance reasonably satisfactory to the Representatives, as set forth in Exhibit C hereto. (c) The KKR Selling Stockholder shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special~~ counsel for the KKR Selling Stockholder, to furnish to the Representatives an opinion letter, dated the Closing Date or any settlement date, as the case may be, and in form and substance reasonably satisfactory to the Representative. (d) The Management Selling Stockholders shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ~~Islands~~ LLP, counsel for the ~~Company~~Management Selling Stockholders, to ~~have furnished~~ furnish to the Representatives ~~their written opinion~~an opinion letter, dated the Closing Date or any settlement date, as the case may be, and in form and substance reasonably satisfactory to the Representatives. (e) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion letter and negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and addressed to the Representatives, with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to the Underwriters a certificate of the Company, signed by (x) the chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date or any settlement date, as the case may be, 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: (1) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except in the case of Section 1 (nn), (oo) and (pp) or to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) at the Execution Time and on the Closing Date or any settlement date, as the case may be, and the Company has complied in all 24 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 or any settlement date, as the case may be; (2) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (3) 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 or pursuant to Section 8A under the Act have been instituted or, to the Company’s knowledge, threatened. (g) At the Execution Time and at the Closing Date or any settlement date, as the case may be, the Company shall have requested and caused KPMG LLP to furnish to the Underwriters a “comfort” letter, dated as of the Execution Time, and a bring-down “comfort letter,” dated as of the Closing Date or any settlement date, as the case may be, in form and substance reasonably satisfactory to the Representatives, ~~substantially~~ confirming that they are independent registered public accountants within the meaning of the Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information of the Company contained in the Disclosure Package and the Prospectus, including any supplement thereto at the date of the applicable letter. (h) On the Closing Date, the Underwriters shall receive a written certificate executed by (i) in the case of the KKR Selling Stockholder, the general partner of the KKR Selling Stockholder and (ii) in the case of each of the Management Selling Stockholders, an Attorney-in-Fact of such Selling Stockholder, each dated as of such date, to the effect that: (i) the representations and warranties of the applicable Selling Stockholder set forth in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties shall be subject to accuracy in all respects) with the same force and effect as though expressly made by such Selling Stockholder on and as of such date; and (ii) the applicable Selling Stockholder 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 such date. (i) On or before the Closing Date, the Management Selling Stockholders shall have furnished for review by the Underwriters copies of the Power of Attorney, Stock Power and Custody Agreement, as applicable, and such further information, certificates and documents as the Underwriters may reasonably request. (j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change or development involving a prospective change, in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, and after giving effect to the Transaction, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which is, or would reasonably be expected to become, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (k) On the Closing Date or any settlement date, as the case may be, the Securities shall have been approved for listing and admitted and authorized for trading on the Exchange, subject only to official notice of issuance. (l) At or prior to the Execution Time, the Company shall have caused each officer and director of the Company listed on Exhibit A-1 hereto to furnish to the Representatives and the Lead Managing Agent, and each Selling Stockholder shall have furnished to the Representatives and the Lead Managing Agent, a letter addressed to the Representatives and the Lead Managing Agent substantially in the form of Exhibit A hereto. (m) Prior to the Closing Date or any settlement date, as the case may be, the Company shall have taken all action reasonably required to be taken by it to have the Securities declared eligible for clearance and settlement through DTC. (n) Prior to the Closing Date or any settlement date, as the case may be, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives 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 the Representatives and counsel for the Underwriters. The documents required to be delivered by this Section 8 will be available for inspection at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, on the Business Day prior to the Closing Date or any settlement date, as the case may be.

Appears in 1 contract

Sources: Underwriting Agreement (BrightSpring Health Services, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Ring Energy, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company, the Adviser and the Administrator contained herein as of the Execution ~~Time,~~ Time and the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company, the Adviser and the Administrator made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company, the Adviser or the Administrator of their obligations hereunder and to the following additional conditions: (a) The Final ~~Prospectus,~~ Prospectus and any ~~supplement thereto, shall~~ supplements thereto have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 54(c) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects. (b) ~~All corporate, partnership~~ The Company shall have requested and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to caused special counsel for the ~~Underwriters~~Company, the Adviser and the ~~Company shall~~ Administrator to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibits ▇-▇, ▇-▇ and A-3. In rendering such opinion, such counsel ~~all documents~~ may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and ~~information that~~ may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company, the Adviser and the Administrator and public officials. References to the Final Prospectus in Exhibits ▇-▇, ▇-▇ and A-3 shall also include any supplements thereto at the Closing Date. Such opinion may ~~reasonably request to enable them to pass upon such matters~~contain customary assumptions, exclusions and limitations. (c) The Company shall have requested and caused ~~▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands~~ Maryland counsel for the Company, to have furnished to the Representatives ~~their written~~ its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibit B. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in Exhibit B shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (d) You shall have received on the Closing Date an opinion of counsel for the Adviser and the Administrator, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit C. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in Exhibit C shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (e) The Representatives shall have received from counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Adviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or the President or Executive Vice President and the principal financial or accounting officer of each of the Company, the Adviser and the Administrator, as the case may be, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, any amendments or supplements thereto and this Agreement and that: (i) The representations and warranties of the Company, the Adviser or the Administrator, as the case may be, in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company, the Adviser or the Administrator, as the case may be, 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 Date and the statements made in the Preliminary Final Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Recent Developments” are true and correct on and as of the Closing Date; (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, the Adviser’s or the Administrator’s knowledge, as the case may be, threatened; and (iii) Since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Company) and since the date of the Final Prospectus (exclusive of any supplements thereto) (with respect to the certificates of the Adviser and the Administrator), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Adviser or the Administrator, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto). (g) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, 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 ~~reasonably~~ satisfactory to the Representatives, ~~substantially to~~ confirming that it is an independent accountant within the meaning of the Act and the 1940 Act and the Rules and Regulations and that it has performed a review of the unaudited interim financial information of the Company for the nine-month period ended December 31, 2009 and as at December 31, 2009, in accordance with Statement on Auditing Standards No. 100 and stating in effect that: (i) in its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus and reported on by it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the nine-month period ended December 31, 2009 and as at December 31, 2009, as indicated in its report dated April 27, 2010; 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 Audit and Nominating and Corporate Governance committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to December 31, 2009, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form N-2; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; and (2) with respect to the period subsequent to December 31, 2009, there were, at a specified date not more than five days prior to the date of the letter, any material changes in the capital stock of the Company, excluding issuances in accordance with the Company’s dividend reinvestment plan as compared with the amounts shown in the December 31, 2009 unaudited statement of assets and liabilities included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, except for changes, increases or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives. (iii) it has performed certain other specified procedures as a result of which it 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 Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, including the information set forth under the captions “Selected Condensed Financial and Other Data” and “Fees and Expenses” in the Preliminary Final Prospectus and the Final Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (h) 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 (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Basic Prospectus, each Preliminary Final Prospectus 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 sole judgment of the Representatives, 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 Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto). (i) Apollo Global Management, LLC shall have delivered to you a certificate signed by one of its senior officers in the form attached as Exhibit D. (j) Prior to the Closing Date, the Company, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (k) If required by NASDAQ Marketplace Rule 4310(c)(17), the Company shall provide satisfactory evidence to the Representatives that the Company has filed a Notification Form: Listing of Additional Shares with NASDAQ with respect to the Securities and obtained confirmation with NASDAQ staff that the staff has no further comments on the filing and agrees that stockholder approval is not required pursuant to NASDAQ Marketplace Rule 4350(i)(1). (l) If any of the conditions 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 to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. (m) The documents required to be delivered by this Section 7 shall be delivered at the office of counsel for the Underwriters on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Apollo Investment Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Nb Capital Acquisition Corp.)

Appears in 1 contract

Sources: Underwriting Agreement (GTY Technology Holdings Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Flexion Therapeutics Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Acceleron Pharma Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company, the Adviser and the Administrator contained herein as of the Execution Time, the Closing Date and any settlement date for the Option ~~Closing Date~~ Securities pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company, the Adviser and the Administrator made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company, the Adviser or the Administrator of their obligations hereunder and to the following additional conditions: (a) The Final ~~Prospectus,~~ Prospectus and any ~~supplement thereto, shall~~ supplements thereto have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 54(c) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects. (b) ~~All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement~~The Company, the ~~Class A Common Stock, the Registration Statement~~ Adviser and the ~~Final Prospectus~~Administrator shall have requested and caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ~~and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to~~ counsel for the ~~Underwriters~~Company, the Adviser and the ~~Company shall~~ Administrator to have furnished to ~~such counsel all documents~~ the Representatives its opinion, dated the Closing Date (or, if applicable, the settlement date) and ~~information that they may~~ addressed to the Representatives in substantially the form attached hereto as Exhibit A and otherwise in form and substance reasonably ~~request~~ satisfactory to ~~enable them to pass upon such matters~~the Representatives. (c) The Company shall have requested and caused ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, to have furnished to the Representatives its opinion as to certain matters pertaining to Maryland law, dated the Closing Date (or, if applicable, the settlement date) and addressed to the Representatives in substantially the form attached hereto as Exhibit B and otherwise in form and substance reasonably satisfactory to the Representatives. (d) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the ~~Company~~Underwriters, ~~to have furnished to the Representatives their written opinion~~such opinion or opinions, dated the Closing Date (or, if applicable, the settlement date) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, each Preliminary Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company, the Adviser and the Administrator shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate, signed by the principal executive officer and the principal financial or accounting officer of each of the Company, the Adviser and the Administrator, as the case may be, dated the Closing Date (or, if applicable, the settlement date), to the effect that the signers of such certificate have carefully examined the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, any amendments or supplements thereto and this Agreement and that: (i) The representations and warranties of the Company, the Adviser or the Administrator, as the case may be, in this Agreement are true and correct on and as of the Closing Date (or, if applicable, the settlement date) with the same effect as if made on the Closing Date (or, if applicable, the settlement date) and the Company, the Adviser or the Administrator, as the case may be, 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 Date (or, if applicable, the settlement date); and the statements made in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Recent Developments” are true and correct as of the Closing Date (or, if applicable, the settlement date); (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, the Adviser’s or the Administrator’s knowledge, as the case may be, threatened; and (iii) Since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Company) and since the date of the Final Prospectus (exclusive of any supplements thereto) (with respect to the certificates of the Adviser and the Administrator), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Adviser or the Administrator, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto). (f) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time, the Closing Date and any settlement date, letters, dated respectively as of the Execution Time, the Closing Date and any settlement date, in form and substance ~~reasonably~~ satisfactory to the Representatives, ~~substantially to~~ confirming that it is an independent accountant within the meaning of the Act and the 1940 Act and the Rules and Regulations and that it has audited the consolidated statement of assets and liabilities, including the consolidated schedule of investments of the Company as of December 31, 2011 and 2010 and the related consolidated statement of operations, changes in net assets and cash flows for the year ended December 31, 2011, 2010 and 2009 and performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2012 and as at March 31, 2012 and the three-month and nine-month periods ended September 30, 2012 and as at September 30, 2012, in accordance with Statement on Auditing Standards No. 100 and stating in effect that: (i) in its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus and reported on by it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Statement on Auditing Standards No. 100, Interim Financial Statements, of the unaudited interim financial information for the three-month period ended March 31, 2012 and as at March 31, 2012 and the three-month and nine-month period ended September 30, 2012 and as at September 30, 2012; 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 committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to December 31, 2011, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form N-2; or said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus; and (2) with respect to the period subsequent to September 30, 2012, there were any changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock, increase in debt or decreases in consolidated net assets of the Company, or decrease in per share net asset value as compared with amounts shown on the September 30, 2012 unaudited consolidated statement of assets and liabilities included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, or for the period from September 30, 2012 to such specified date, there were any decreases in net assets resulting from the operations of the Company as compared with the corresponding period in 2011, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives. (iii) it has performed certain other specified procedures as a result of which it 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 Base Prospectus, each Preliminary Prospectus and the Final Prospectus, including the information set forth under the captions “Fees and Expenses” and “Selected Financial and Other Data” in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the 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 post-effective amendment thereof), each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any 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 change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Adviser and the Administrator, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Base Prospectus, each Preliminary Prospectus 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 sole judgment of the Representatives, 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 post-effective amendment thereof), the Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto). (h) Prior to the Closing Date (or, if applicable, the settlement date), the Company, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date (or, if applicable, the settlement date) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act. (j) The Securities shall have been listed and admitted and authorized for trading on NASDAQ. If any of the conditions 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 to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of counsel for the Underwriters on the Closing Date (or, if applicable, the settlement date).

Appears in 1 contract

Sources: Underwriting Agreement (Solar Capital Ltd.)

Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Firm ~~Securities and~~ Stock as provided herein on the ~~Option Securities~~Closing Date and, ~~as the case may be~~with respect to any Optional Stock, any Subsequent Closing Date, shall be subject to (1) the accuracy of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained herein as of the Execution ~~Time,~~ Time and the Closing Date ~~and~~ as though then made and, with respect to any ~~Option~~ Optional Stock, as of any Subsequent Closing Date ~~pursuant to Section 3 hereof~~as though then made, to (2) the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to (3) the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to (4) each of the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall have~~ has been filed in the 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~~ Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has paid the fees required by the Commission relating to the Stock within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission. (b) ~~All corporate, partnership and limited liability company proceedings and other legal matters incident~~ FINRA shall have raised no objection to the ~~authorization, form~~ fairness and ~~validity~~ reasonableness of ~~this Agreement,~~ the ~~Class A Common Stock, the Registration Statement~~ underwriting terms and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such mattersarrangements. (c) ~~The~~ On the Closing Date and any Subsequent Closing Date, the Company shall have requested and caused ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ~~(New York) LLP, special ▇▇▇▇~~▇▇▇▇ ~~Islands~~ and ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their ~~written~~ opinion, dated ~~the~~ as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, each in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit B hereto. (d) On the Closing Date and any Subsequent Closing Date, the Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Stock, the Registration Statement, the Disclosure Package, the 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 such documents as they request for the purpose of enabling them to pass upon such matters. (e) On the Closing Date and any Subsequent Closing Date, the Company shall have furnished to the Representatives a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated as of such Closing Date or Subsequent Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any supplements or amendments thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such Closing Date or Subsequent Closing Date with the same effect as if made on such Closing Date or Subsequent Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date or Subsequent Closing Date; (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 or pursuant to Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; (iii) the Company has not received any 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); and (iv) since the date of the most recent financial statements included or incorporated by reference in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), earnings, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business or otherwise, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (f) On the Closing Date and any Subsequent Closing Date, the Company shall have furnished to the Representatives the opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Company’s Deputy General Counsel (or such other in-house legal officer or officers acceptable to the Representatives), signed by the Deputy General Counsel or such counsel or counsels, dated as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, to the effect set forth in Exhibit C hereto. (g) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date and at any Subsequent Closing Date, letters, (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Base Prospectus, the Registration Statement and the Prospectus. (h) 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 Disclosure Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any 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 change, in or affecting the condition (financial or otherwise), 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 or otherwise, except 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 sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Stock as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any supplement thereto). (i) 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 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. (j) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance. (k) The Lock-Up Agreements between the Underwriters, on the one hand, and the officers of the Company set forth on Schedule II and the directors of the Company, on the other hand, delivered to the Underwriters on or before the date of this Agreement, shall be in full force and effect on the Closing Date and any Subsequent Closing Date. 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 ~~Representatives, substantially to the effect that:~~Underwriters.

Appears in 1 contract

Sources: Underwriting Agreement (Dean Foods Co)

Appears in 1 contract

Sources: Underwriting Agreement (Transalta Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase Firm Shares on the ~~Firm Securities~~ First Closing Date and the ~~Option Securities, as the case may be,~~ Optional Shares to be purchased on each Optional Closing Date shall be subject to the accuracy of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained herein as of the Execution ~~Time~~Time and such Closing Date, (except, in the case of the Optional Closing Date, the ~~Closing Date~~ representations and ~~any Option Closing Date pursuant to~~ warranties in Section ~~3 hereof,~~ 1(b.2) shall be as of the date and time specified therein) to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions ~~hereof~~of this Section, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (ai) The Canadian Final ~~Prospectus, and any supplement thereto,~~ Prospectus shall have been filed in with the ~~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)~~ Canadian Qualifying Authorities under the ~~Act~~ Shelf Procedures and (ii) the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in each case, within the applicable time ~~periods~~ period prescribed for such ~~filings by Rule 433~~filing and in accordance with Section 5(a) hereof; ~~and~~ 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 ~~proceedings~~ order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no order, ruling or determination having the effect of ceasing or suspending trading in the Common Shares or any other securities of the Company shall have been issued and no proceeding for ~~that~~ any such purpose shall have been ~~instituted~~ initiated or ~~threatened.~~threatened by the Commission or any Canadian Qualifying Authority; (b) ~~All corporate~~The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to U.S. counsel for the ~~Underwriters~~Company, ~~and the Company shall~~ to have furnished to ~~such counsel all documents~~ the Representatives their opinion and ~~information that they may reasonably request~~ letter, dated the Closing Date and addressed to ~~enable them to pass upon such matters.~~Representatives on behalf of the Underwriters, substantially in the form attached hereto as Annex B; (c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Underwriters, with respect to the laws of each of the provinces of Canada and the federal laws of Canada applicable therein (provided that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely, to the extent appropriate in the circumstances, on opinions of local counsel (acceptable to them and Dentons Canada LLP, Canadian counsel to the Underwriters) as to the qualification of the Common Shares for sale to the public in, and as to other matters governed by, the laws of jurisdictions other than the provinces of British Columbia, Alberta, Ontario and Québec), substantially in the form attached hereto as Annex C. (d) The Representatives shall have received from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ U.S. counsel for the ~~Company~~Underwriters, ~~to have furnished to~~ and Dentons Canada LLP, Canadian counsel for the ~~Representatives their written opinion~~Underwriters, such opinion or opinions, dated the Closing Date and addressed to the ~~Representatives~~Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Canadian Final Prospectus (together with any supplement thereto), the U.S. 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 such documents as they request for the purpose of enabling them to pass upon such matters; (e) The Representatives shall have received from the Vice President & Corporate Secretary of the Company a certificate, dated the Closing Date and addressed to the Underwriters, substantially in the form attached hereto as Annex D. (f) The Representatives shall have received from Fulbright & ▇▇▇▇▇▇▇▇ LLP, U.S. regulatory counsel to the Company, dated the Closing Date and addressed to the Underwriters, an opinion substantially in the form attached hereto as Annex E. (g) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) both its Executive Vice President, Chief Financial Officer & Corporate Development and Vice President, Treasury & Tax or (ii) either one of such officers and another of its senior officers, dated the Closing Date and addressed to the Underwriters, to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus and the U.S. Final Prospectus, and this Agreement, and to the best knowledge of such signers, after due investigation: i. the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date (except, in the case of the Optional Closing Date, the representations and warranties in Section 1(b.2) shall be as of the date and time specified therein); ii. no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any prospectus relating to the Securities and no order, ruling or determination having the effect of ceasing or suspending trading in the Common Shares or any other securities of the Company has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by any Canadian Qualifying Authority or the Commission; and iii. since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package, the Canadian Final Prospectus (exclusive of any supplement thereto) and the U.S. Final Prospectus (exclusive of any supplement thereto); (h) The Representatives shall have received from PricewaterhouseCoopers LLP a letter or letters dated the Execution Time and at the Closing Date, in form and substance reasonably satisfactory to the Representatives, ~~substantially~~ together with signed or reproduced copies of such letter or letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus; (i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Disclosure Package and the Canadian Final Prospectus (exclusive of any supplement thereto) and the U.S. Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any 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 change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package, the Canadian Final Prospectus and the U.S. 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 sole judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Canadian Final Prospectus (exclusive of any supplement thereto) and the U.S. Final Prospectus (exclusive of any supplement thereto); (j) At the time of filing of the French language version of the Canadian Final Prospectus with the Canadian Qualifying Authorities the Representatives shall have received: i. an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Corporation, addressed to the Underwriters and the Underwriters’ Canadian counsel, to the effect ~~that:~~that the French version of the Canadian Basic Prospectus, the Canadian Final Prospectus and the documents incorporated by reference therein, except for certain financial or statistical information (the “Financial Information”), is in all material respects a complete and proper translation of the English version thereof and the versions are not susceptible to any materially different interpretation with respect to any material matter contained therein; and ii. an opinion of PricewaterhouseCoopers LLP, auditors for the Corporation, addressed to the Underwriters and the Underwriters’ Canadian counsel, to the effect that the Financial Information contained or incorporated by reference in the French version of the Canadian Basic Prospectus and the Canadian Final Prospectus is in all material respects a complete and proper translation of the Financial Information contained or incorporated by reference in the English version thereof; (k) Prior to the Closing Date, the Company shall have furnished to the Underwriters evidence that the Securities have been listed for trading on the Toronto Stock Exchange and will be posted for trading at the opening of trading on the Closing Date, and that the Securities to be delivered on such Closing Date have been approved for listing, subject to official notice of issuance, on the New York Stock Exchange; (l) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request and as is customary in offerings of securities similar to the Securities. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives upon notice of cancellation to the Company in writing or by telephone or facsimile confirmed in writing. The Representatives may in their sole discretion waive, on behalf of the Underwriters, compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Suite ▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ on the Closing Date (or such other date as provided in this Section 6) or such other place as the Representatives shall so instruct.

Appears in 1 contract

Sources: Underwriting Agreement (Enbridge Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Kindred Healthcare, Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement ~~thereto, shall~~ thereto have been filed in the 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) under the ~~Act~~ 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 and no proceedings for that purpose shall have been instituted or threatened. (b) ~~All corporate~~The Company shall have requested and caused H▇▇▇▇ & H▇▇▇▇▇▇ L.L.P., ~~partnership and limited liability company proceedings and other legal matters incident~~ U.S. counsel for the Company, to have furnished to the ~~authorization~~Representative their opinions substantially in the forms set forth in Exhibit D hereto, ~~form~~ dated the Closing Date and ~~validity of this Agreement~~any settlement date and addressed to the Representative. (c) The Representative shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representative, 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 Representative may reasonably require, and the Company shall have furnished to such counsel ~~all~~ such documents ~~and information that~~ as they ~~may reasonably~~ request ~~to enable~~ for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date, 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) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date and any settlement date with the same effect as if made on the Closing Date and any settlement 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 Date and any settlement date; (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 or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect. (e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representative, at the Execution Time and at the Closing Date and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representative, confirming that its an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating to the effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final 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 three-month period ended September 30, 2007 and as at September 30, 2007; 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 shareholders, directors and audit and corporate governance 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 transactions and events subsequent to June 30, 2007, 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, the Preliminary Prospectus and the Final 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 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 the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; (2) with respect to the period subsequent to September 30, 2007, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company as compared with the amounts shown on the September 30, 2007 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; (3) the information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the applicable disclosure requirements of Regulation S-K; and 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 and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Dividend History” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information set forth under the captions “The Company,” “Ratio of Earnings to Fixed Charges and Preferred Stock Dividends,” and “Description of Common Stock” in the Prospectus, the information the Company’s Definitive Proxy Statement, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1, 1A, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1A, 2 and 3 of the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and the information in Items 1.01, 2.01, 2.02, 8.01 and 9.01 of the information in the Company’s Current Reports on Form 8-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (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 amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any Material Adverse Effect, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, 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 Final Prospectus (exclusive of any amendment or supplement thereto). (g) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. (1) Any Common Stock issuable upon conversion of, or as a dividend on, the Securities shall have been approved for listing on the NASDAQ Global Select Market and the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representative and (2) the Company shall have filed the Certificate of Designation with the Delaware Secretary of State. (i) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A to this Agreement from each officer and director of the Company addressed to the Representative. 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 Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. 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 C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ & ▇▇▇▇▇~~▇▇▇ (New York) LLP~~, ~~special ▇▇▇▇▇▇▇▇ Islands counsel for the Company, to have furnished to the Representatives their written opinion, dated~~ on the Closing ~~Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, substantially to the effect that:~~Date.

Appears in 1 contract

Sources: Underwriting Agreement (Royal Gold Inc)

Appears in 1 contract

Sources: Underwriting Agreement (LatAmGrowth SPAC)

Appears in 1 contract

Sources: Underwriting Agreement (Bel Fuse Inc /Nj)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company and the Operating Partnership contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company and the Operating Partnership made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company and the Operating Partnership of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any ~~supplement~~ supplements thereto, ~~shall~~ have been filed in the 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) under the ~~Act~~ 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇Jaffe, Raitt, Heuer & ▇▇▇▇▇, ~~▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP~~P.C., ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the Company, to have furnished to the Representatives their ~~written~~ opinion, dated the Closing Date and addressed to the Representatives, ~~in form and substance reasonably satisfactory to the Representatives, substantially~~ to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland. The Company has the full corporate power to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus. The Company 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. (ii) The Operating Partnership has been duly organized and is validly existing as a limited partnership in good standing under the laws of the state of Michigan. The Operating Partnership has the full limited partnership power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Statement and the Final Prospectus. The Operating Partnership is duly qualified to do business as a foreign entity 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. (iii) Each subsidiary of the Company set forth on Schedule VI hereto (the “Material Subsidiaries”) has been duly incorporated or organized, as the case may be, and each Material Subsidiary 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 organization, as the case may be. Each Material Subsidiary has the full power (corporate, limited liability company or partnership, as the case may be) and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus. Each Material Subsidiary is duly qualified to do business as a foreign entity for the transaction of business 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. All of the outstanding shares of capital stock, membership interests or partnership interests of each Material Subsidiary, as the case may be, have been duly and validly authorized and issued and are fully paid and nonassessable and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interests, liens, encumbrances, equities or claims. (iv) The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus. The capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Prospectus. The certificates for the Securities are in valid and sufficient form, and comply in all material respects with the applicable statutory requirements of the MGCL and the requirements of the charter or bylaws of the Company. The sale and issuance of the Securities pursuant to this Agreement is not subject to preemptive or other similar rights pursuant to the charter or bylaws of the Company or the MGCL. (v) The Securities to be issued and sold by the Company under the Underwriting Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and, when issued and delivered to and paid by the Underwriter pursuant to the Underwriting Agreement, will be validly issued, fully paid and nonassessable. (vi) The Underwriting Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The execution, delivery and performance by the Company of the Underwriting Agreement, including the Company’s sale and issuance of the Securities to the Underwriters, have been duly authorized by all necessary corporate action on the part of the Company. The execution, delivery and performance of the Underwriting Agreement by the Operating Partnership have been duly authorized by all necessary limited partnership action on behalf of the Operating Partnership. (vii) The execution, delivery and performance by the Company of the Rights Agreement have been duly authorized by all necessary corporate action on the part of the Company. The Rights Agreement has been duly executed and, so far as is known to us, delivered by the Company. The issuance of the Rights has been duly authorized by the Company, and, when issued upon issuance of the Securities in accordance with the Rights Agreement, the Rights will be validly issued. (viii) The issuance and sale of the Securities to be sold by the Company, the compliance by the Company and the Operating Partnership with all applicable terms of the Underwriting Agreement and the consummation of any of the transactions described therein and fulfillment of the terms thereof, 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, the Operating Partnership or any subsidiary of the Company pursuant to (i) the charter or bylaws of the Company or Operating Partnership Agreement or similar organizational documents of the Company, the Operating Partnership and each subsidiary of the Company, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement (A) to which the Company, the Operating Partnership or any subsidiary of the Company is a party or bound or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary of the Company is subject and (B) which is filed as an exhibit to a filing made by the Company under the Exchange Act, (iii) any Federal, Maryland, Michigan or New York state law, statute, regulation or rule, in each case, which, in such counsel’s experience, is normally applicable to transactions of the type contemplated by the Underwriting Agreement, or (iv) to such counsel’s knowledge, any judgment, order or decree applicable to the Company, the Operating Partnership or any subsidiary of the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, the Operating Partnership or any subsidiary of the Company or any of its or their properties. (ix) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated by the Underwriting Agreement, except such as have been obtained or made under the Act and the rules and regulations promulgated thereunder 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 Underwriters in the manner contemplated in this Agreement, the Disclosure Package and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained. (x) To such counsel’s knowledge, there is no pending or threatened action, suit or proceeding at law or in equity, or by or before any court or governmental or regulatory authority, body or agency or arbitrator involving the Company, the Operating Partnership or any subsidiary of the Company or its or their property, of a character required to be disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus which is not adequately disclosed in Registration Statement, the Disclosure Package or the Final Prospectus. To such counsel’s knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package and the Final Prospectus, or filed as an exhibit thereto, which is not described or filed as required. (xi) Such counsel has reviewed the information included or incorporated by reference in the Base Prospectus, Preliminary Prospectus and in the Final Prospectus under the captions “Description of Common Stock,” “Description of Preferred Stock,” “Description of Units,” “The Operating Partnership Agreement,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” and “Risk Factors,” and to the extent statements contained therein purport to constitute summaries of legal matters, agreements, documents or proceedings referred to therein, such statements fairly summarize the matters, agreements, documents or proceedings described therein in all material respects and the Securities conform in all material respects to the information contained therein. (xii) The Registration Statement has become effective under the Act. To such counsel’s knowledge, 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 threatened. Any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under the Act has been made in the manner and within the time period required by such Rule 424(b). Any required filing of the Issuer Free Writing Prospectus pursuant to Rule 433 under the Act has been made in the manner and within the time period specified by such Rule 433. (xiii) The Registration Statement, the Preliminary Prospectus, the Final Prospectus and the Issuer Free Writing Prospectus, as of their respective dates (in each case, other than the financial statements (including the notes and schedules thereto) and other financial data or information of a statistical nature derived from the financial statements (including the notes and schedules thereto) contained therein, as to which such counsel expresses no opinion) comply as to form in all material respects with the requirements of the Act and Exchange Act and the respective rules thereunder. (xiv) Each of the documents incorporated by reference in the Disclosure Package and the Final Prospectus, on the respective dates they were filed, appeared on their face to comply in all material respects with the requirements as to form for reports on Form 10-K, Form 10-Q and Form 8-K and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the related rules and regulations in effect at their respective dates of filing. (xv) The Company has qualified for treatment as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended, for each of its taxable years ended December 31, 1994 through December 31, 2015 and the Company's organization and current and proposed method of operation, as represented by the Company in the officer's certificate relating to the organization and actual and proposed operation of the Company, will enable it to continue to meet the requirements for qualification and taxation as a REIT under current law for its taxable year ending December 31, 2016 and each taxable year thereafter. (xvi) The discussions set forth in (i) Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on March 15, 2016, incorporated by reference in the Preliminary Prospectus and the Final Prospectus, under the caption “Material U.S. Federal Income Tax Considerations” and (ii) Item 8.01 (Other Events) of the Company’s Current Report on Form 8-K filed with the Commission on August 2, 2016, incorporated by reference in the Preliminary Prospectus and the Final Prospectus, to the extent that they purport to constitute a summary of matters of law and legal matters or documents referred to therein, is an accurate summary in all material respects. (xvii) The Company and the Operating Partnership are not, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, required to register as an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. (xviii) The Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the NYSE. (xix) No holders of securities of the Company have rights (other than rights which been waived) to the registration of such securities under the Registration Statement. 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 Michigan 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 reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. In addition, such counsel shall include a statement to the effect that on the basis of conferences with officers and other representatives of the Company and the Operating Partnership, representatives of the Underwriters and representatives of the independent accountants for the Company, examination of documents referred to in the Registration Statement, the Disclosure Package and the Final Prospectus and such other procedures as such counsel deemed appropriate, but without independent review or verification and without assuming responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Final Prospectus (except as otherwise set forth in its opinion), nothing has come to the attention of such counsel that causes such counsel to believe that (a) any part of the Registration Statement or any amendment thereof (including any 430B Information omitted from the Registration Statement at the time the Registration Statement became effective but that is deemed to be part of and included in the Registration Statement pursuant to Rule 430B), when such part became effective (including each deemed effective date with respect to the Underwriters pursuant to the Rules and Regulations) and as of such Closing Date, 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 (b) that the Disclosure Package and the price per share to the Underwriters, the number

Appears in 1 contract

Sources: Underwriting Agreement (Sun Communities Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Flexion Therapeutics Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters 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 ~~Teekay Parties~~ Company contained herein as of the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, ~~shall~~ have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the ~~Act~~ 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 and no proceedings for that purpose shall have been instituted or threatened. (b) ~~All corporate, partnership and limited liability company proceedings and other legal matters incident~~ The Company shall have furnished to the ~~authorization~~Representatives the opinion of Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & F▇▇▇ LLP, ~~form~~ counsel for the Company, dated the Closing Date, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of the State of Texas, with corporate power and ~~validity~~ authority to own or lease its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; and the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable; and, to such counsel’s knowledge, except (A) as reflected in the Company’s financial statements, (B) as described in the Registration Statement or (C) as disclosed in such counsel’s opinion, (x) the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company or its subsidiary free and clear of all liens, encumbrances and security interests and (y) except as set forth on Schedule III hereto, no options, warrants or other rights to purchase, agreements or other obligations to issue, or other rights to convert any obligations into any shares of capital stock or of ownership interests in the Subsidiaries are outstanding. (ii) The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus. (iii) Except as described in the Disclosure Package and the Final Prospectus, to the knowledge of such counsel, no holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Securities or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company. (iv) the Indenture has been duly authorized, executed and delivered, 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 and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the ~~Class A Common Stock~~Company entitled to the benefits of the Indenture (subject, in respect to both the Indenture and the Securities, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer, moratorium or other laws affecting creditors’ rights generally from time to time in effect); (v) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Act. (vi) The Registration Statement, the Final Prospectus and each amendment or supplement thereto and documents incorporated by reference therein (each as amended to date) comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information incorporated by reference therein). (vii) The statements under the captions “Business” and “Description of the Notes” in the Disclosure Package and the Final Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and accurately present the information called for with respect to such documents and matters in all material respects. (viii) To such counsel’s knowledge, there are no contracts or documents required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Disclosure Package and the Final Prospectus (excluding any document incorporated therein by reference) which are not so filed or described as required, and such contracts and documents as are summarized in the Registration Statement or the Disclosure Package and the Final Prospectus (excluding any document incorporated therein by reference) are fairly summarized in all material respects. (ix) To such counsel’s knowledge, there are no material legal proceedings pending or threatened against the Company or any of the Subsidiaries which are of a character required to be disclosed in the Disclosure Package and the Final Prospectus and which has not been properly disclosed therein. (x) The execution and delivery of the Indenture, the issuance and sale of the Securities and the execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, (a) the Articles of Incorporation or (b) By-laws of the Company, or (c) to such counsel’s knowledge, any agreement or instrument filed as an exhibit to the Company’s most recent annual report on Form 10-K or any subsequent quarterly report of the Company on Form 10-Q (other than licenses or permits granted by the FCC, on which such counsel need not express any opinion), or (d) will not contravene any law, rule or regulation of the United States or the State of Texas or the General Corporation Law of the State of Delaware, or, to such counsel’s knowledge, any order or decree of any court or governmental agency or instrumentality, except, with respect to clause (c) above, a conflict, breach or default which would not have a materially adverse effect on the business or financial condition of the Company and its subsidiaries taken as a whole. (xi) This Agreement has been duly authorized, executed and delivered by the Company. (xii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body having jurisdiction over the Company is necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions herein contemplated (other than as may be required by the NASD or NYSE or as required by State securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made, specifying the same. (xiii) The Company is not, and will not become, as a result of the consummation of the transactions contemplated by this Agreement, and application of the net proceeds therefor as described in the Final Prospectus, required to register as an investment company under the 1940 Act. In rendering such opinion, such counsel may rely (A) as to matters governed by the laws of states other than Texas or Federal laws on local counsel in such jurisdictions, provided that in each case such counsel shall state that they believe that they and the Underwriters are justified in relying on such other counsel and (B) as to matters of fact, on certificates of responsible officers of the Company and certificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and any Subsidiary. In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Registration Statement, as of the time it became effective under the Act, the Disclosure Package as of 10:15 a.m. on August 10, 2006 (which the Representatives have advised such counsel is a time prior to the first sale of the Notes by the Underwriters), the Final Prospectus or any amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b) and the Registration Statement and the Final Prospectus, or any amendment or supplement thereto, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to matters pertaining to the statistical information contained in the Final Prospectus or financial statements, schedules and ~~all~~ other ~~legal matters relating~~ financial information contained or incorporated by reference in the Final Prospectus). With respect to ~~this Agreement~~ such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent check and ~~transactions contemplated hereby~~ verification. (c) The Underwriters shall be have received on the Closing Date the opinion of W▇▇▇▇ ▇▇▇▇ & Fielding LLP, special FCC counsel to the Company, dated the Closing Date, addressed to the Underwriters as is reasonably ~~satisfactory in all material respects~~ acceptable to the Underwriters. (d) The Representatives shall have received from Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package and 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 ~~all~~ such documents ~~and information that~~ as they ~~may reasonably~~ request ~~to enable~~ for the purpose of enabling them to pass upon such matters. (ce) The Company shall have ~~requested~~ furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and ~~caused~~ the principal financial or accounting officer of the Company, in their capacity as such, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto, as well as each electronic roadshow used to offer the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to 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 change in the condition (financial or otherwise); prospects, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (f) At the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives letters dated as of the Execution Time and the Closing Date in form and substance satisfactory to the Representatives. (g) Except as agreed to by the Representatives, 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 purpose 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. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Underwriters, at Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇~~▇▇▇~~▇ & ▇▇▇▇▇, ▇▇▇ ~~(New York) LLP, special~~ ▇▇▇▇▇▇, ▇▇ ~~Islands counsel for the Company, to have furnished to the Representatives their written opinion, dated~~ the Closing ~~Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, substantially to the effect that:~~Date.

Appears in 1 contract

Sources: Underwriting Agreement (Clear Channel Communications Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Owens Corning)

Appears in 1 contract

Sources: Underwriting Agreement (Baltimore Gas & Electric Co)

Conditions to the Obligations of the Underwriters. The ~~obligations of the Underwriters~~ Underwriters' obligation to purchase the ~~Firm Securities and the Option Securities, as the case may be,~~ Certificates shall be subject to the accuracy of the representations and warranties on the part of the Teekay Parties contained herein as of the Execution Time, the Closing Date and any Option Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Teekay Parties made in any certificates delivered pursuant to the provisions hereof, to the performance by the Teekay Parties of their obligations hereunder and to the following ~~additional~~ conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no 6.1 No stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use~~ shall ~~have been issued~~ be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened by the Commission; and the Prospectus Supplement shall have been ~~instituted~~ filed or ~~threatened~~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 Since December 31, 1997, there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Company or GMACCM. 6.3 The Company shall have delivered to the Underwriters a certificate, dated the Closing 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 in the Pooling and Servicing Agreement are true and correct in all material respects; and (b) ~~All corporate~~the Company has, ~~partnership~~ in all material respects, complied with all the agreements and ~~limited liability company proceedings and other legal matters incident~~ satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the ~~authorization~~Closing Date. 6.4 GMACCM shall have delivered to the Underwriters a certificate, ~~form~~ dated the Closing Date, of the President, a Senior Vice President or a Vice President of GMACCM to the effect that the signer of such certificate has examined the Pooling and ~~validity of this Agreement, the Class A Common Stock, the Registration Statement~~ Servicing Agreement and ~~the Final Prospectus, and all other legal matters relating to~~ this Agreement and ~~transactions contemplated hereby shall be reasonably satisfactory~~ that, to the best of his or her knowledge after reasonable investigation, the representations and warranties of GMACCM contained in the Pooling and Servicing Agreement and in this Agreement are true and correct in all material ~~respects to counsel for the Underwriters, and the Company~~ respects. 6.5 The Underwriters shall have ~~furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused~~ received the opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, special counsel for the Company and GMACCM, dated the Closing Date and substantially to the effect set forth in Exhibit A and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇, Esq., general counsel for the Company and GMACCM, dated the Closing Date and substantially to the effect set forth in Exhibit B. 6.6 The Underwriters shall have received from Brown & Wood, LLP, counsel for the Underwriters, an opinion dated the Closing Date in form and substance reasonably satisfactory to the Underwriters. 6.7 The Underwriters shall have received from Price Waterhouse LLP, certified public accountants, (a) a letter dated the date hereof and reasonably satisfactory in form and substance to the Underwriters and their counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by you, 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," "Description of the Certificates" and "Yield and Maturity Considerations" agrees with the records of the Company and the Mortgage Loan Sellers excluding any questions of legal interpretation and (b) the letter prepared pursuant to Section 5.9 hereof. 6.8 The respective classes of Certificates shall have been rated as set forth on Schedule I. 6.9 The Underwriters shall have received, with respect to the Trustee, a favorable opinion of counsel, dated the Closing Date, addressing the valid existence of such party under the laws of the jurisdiction of its organization, the due authorization, execution and delivery of the Pooling and Servicing Agreement by such party and, subject to standard limitations regarding laws affecting creditors' rights and general principles of equity, the enforceability of the Pooling and Servicing Agreement against such party. Such opinion may express its reliance as to factual matters on representations and warranties made by, and on certificates or other documents furnished by officers and/or authorized representatives of, parties to this Agreement and the Pooling and Servicing Agreement and on certificates furnished by public officials. 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 party on behalf of which such opinion is being rendered. Such opinion may be qualified as an opinion only on the laws of each state in which the writer of the opinion is admitted to practice law and the federal law of the United States. 6.10 The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~Islands~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel ~~for~~ to the Company, ~~to have furnished~~ and from ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇, Esq., general counsel to the ~~Representatives their written opinion~~Company, ~~dated the Closing Date and addressed~~ reliance letters with respect to any opinions delivered to the ~~Representatives~~rating agencies identified on Schedule I hereto. 6.11 The Underwriters shall have received from counsel to each Mortgage Loan Seller, ~~in form and substance reasonably satisfactory to~~ the ~~Representatives,~~ opinions substantially to the effect ~~that:~~set forth in Exhibit D-3A and D-3B of the respective Purchase Agreements. The Company will furnish the Underwriters with conformed copies of the above opinions, certificates, letters and documents as they reasonably request.

Appears in 1 contract

Sources: Underwriting Agreement (Gmac Commercial Mortgage Securities Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Tremor International Ltd.)

Appears in 1 contract

Sources: Underwriting Agreement (Onconova Therapeutics, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Dermira, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Cardinal Health Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Kalobios Pharmaceuticals Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Vanguard Natural Resources, LLC)

Appears in 1 contract

Sources: Underwriting Agreement (Mirum Pharmaceuticals, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Arcus Biosciences, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Fund, the Investment Manager and the Investment Adviser contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Fund, the Investment Manager and the Investment Adviser made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Fund, the Investment Manager or the Investment Adviser of ~~their~~ its obligations hereunder or to the Representatives’ waiver in writing thereof and to the following additional conditions: (a) The Final ~~Prospectus,~~ Prospectus and any ~~supplement thereto, shall~~ supplements thereto have been filed in the 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) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Fund, the Investment Manager or ~~threatened~~the Investment Adviser, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The ~~Company~~ Fund shall have requested and caused ▇▇▇▇▇▇~~, ▇▇~~▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ~~(New York)~~ LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the ~~Company~~Fund, to have furnished to the Representatives their ~~written~~ opinion, dated the Closing Date and addressed to the Representatives, ~~in form and substance reasonably satisfactory to the Representatives, substantially~~ to the effect that: (i) The Fund has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of Maryland, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; (ii) The Fund is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification, except to the extent that the failure to be so qualified would not have a material adverse effect on the Fund. The Fund has no subsidiaries; (iii) The Fund is duly registered under the 1940 Act as a closed-end, non-diversified management investment company and the 1940 Act Notification has been duly filed with the Commission; all action has been taken by the Fund as required by the Act, the 1940 Act, the Exchange Act and the Rules and Regulations in connection with the issuance and consummation and sale of the Securities as contemplated by this Agreement; this Agreement and each of the Fund Agreements complies in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and the Fund’s directors and the Fund’s shareholders have approved the Management Agreement in accordance with Section 15 of the 1940 Act; and, to the knowledge of such counsel, the Fund has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement; (iv) This Agreement has been duly authorized, executed and delivered by the Fund; (v) Each of the Fund Agreements has been duly authorized, executed and delivered by the Fund, and constitutes a valid and legally binding agreement of the Fund, assuming due authorization, execution and delivery thereof by the other parties thereto, enforceable against the Fund in accordance with its terms, except as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy, and subject to the qualification that the enforceability of the Fund’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law); (vi) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment and Cash Purchase Plan (i) conflicts with or constitutes a breach of the Organizational Documents of the Fund, (ii) conflicts with or constitutes a material breach of or a material default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Fund is a party or bound or to which its property is subject or (iii) violates any existing statute, law, rule or regulation applicable to the Fund, or to such counsel’s knowledge, violates or will violate any judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties; (vii) The Fund’s authorized equity capitalization is as set forth in each Preliminary Final Prospectus and the Final Prospectus under the caption “Description of Shares”; the capital stock of the Fund conforms in all material respects to the description thereof contained under the caption “Description of Shares” in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; all outstanding Common Shares as of the date hereof (immediately prior to the issuance of the Securities) have been duly authorized and validly issued and are fully paid and nonassessable; the Securities have been duly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement and in accordance with the resolutions of the Board of Directors of the Fund or a committee of the Board of Directors authorizing the issuance thereof, the Securities will be validly issued and fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE Amex LLC; the holders of outstanding Common Shares are not entitled to preemptive or, to the knowledge of such counsel, other rights to subscribe for the Securities, other than rights of reinvestment of dividends in additional Common Shares pursuant to the Dividend Reinvestment and Direct Stock Purchase Plan; and, except as set forth in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus 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 Fund are outstanding; (viii) 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 Fund or its property of a character required to be disclosed in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus or the Final Prospectus which is not adequately disclosed in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus or the Final Prospectus, and there are no material agreements, contracts, indentures, leases, permits or other instruments required to be described in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus or the Final Prospectus, or to be filed as an exhibit to the Registration Statement, which are not described or filed as required; and the statements included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus or the Final Prospectus under the headings “Management of the Fund,” “Description of Shares,” “Certain Provisions of the Maryland General Corporation Law and the Charter and Bylaws” and “Taxation” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings; (ix) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required on the part of the Fund in connection with the transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained or such as may be required by the Act, the 1940 Act, the Exchange Act, the Advisers Act, the rules and regulations of FINRA and NYSE Amex LLC and under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; (x) To the knowledge of such counsel, no holders of securities of the Fund have rights to the registration of such securities under the Registration Statement; (xi) The choice of United States and New York State law to govern this Agreement and the Fund Agreements specified by their terms to be governed by New York law is a valid choice of law under the laws of the State of New York. In rendering its opinion as to the enforceability of the choice of New York law, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP may rely on Section 5-1401 of the New York General Obligation Law, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP may state that it does not express any opinion as to the extent of the connections of (i) the parties to this Agreement or the parties to such Fund Agreements, and (ii) the transactions contemplated hereby or by such Fund Agreements, to New York State; and (xii) The Registration Statement has become effective under the Act; any required filings of the Final Prospectus, and any supplements thereto, pursuant to Rule 497 have been made in the manner and within the time period required by Rule 497; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the 1940 Act and the Rules and Regulations; based upon its participation in the preparation of the Registration Statement (but without checking the accuracy or completeness of the statements therein, except that the statements included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus under the headings “Management of the Fund,” “Description of Shares,” “Certain Provisions of the Maryland General Corporation Law and the Charter and Bylaws” and “Taxation” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings) nothing has come to the attention of such counsel that has caused such counsel to believe that (a) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (b) each Preliminary Final Prospectus and the price to the public, the number of Underwritten Securities, the number of Option Securities and the sales load to be included on the cover page of the Final Prospectus, when taken together as a whole, as of the time of the pricing of the offering of the Underwritten Securities, included any 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, and (c) the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information and the information contained in Appendix A to the Basic Prospectus contained therein, as to which such counsel need express no opinion). In rendering such opinion, such counsel may limit such opinion to matters involving the application of (i) the laws of the State of Maryland, (ii) the federal laws of the United States, and (iii) the laws of the State of New York with respect solely to the enforceability of the Agreement and the Fund Agreements under the provisions of New York law. Such counsel may rely as to matters involving the application of laws of the State of Maryland on the opinion of ▇▇▇▇▇▇▇ LLP and as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Investment Manager, dated the Closing Date and addressed to the Representatives, to the effect that: (i) The Investment Manager is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement, the Investment Advisory Agreement or the Memorandum of Understanding as contemplated by the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; (ii) Assuming due authorization, execution and delivery by all parties thereto other than (if applicable) the Investment Manager, the Management Agreement, the Investment Advisory Agreement and the Memorandum of Understanding are each a valid and legally binding agreement of the Investment Manager, enforceable against the Investment Manager in accordance with its terms, except as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy, and subject to the qualification that the enforceability of the Investment Manager’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law); (iii) This Agreement, the Management Agreement, the Investment Advisory Agreement and the Memorandum of Understanding comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; (iv) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or the Management Agreement, the Investment Advisory Agreement or the Memorandum of Understanding nor the consummation by the Investment Manager of the transactions herein or therein contemplated violates or will violate any existing U.S. federal statute, law, or regulation, or to such counsel’s knowledge, violates or will violate any filing, judgment, injunction, order or decree of any U.S. federal governmental agency or body applicable to the Investment Manager or any of its property, which violation would have a material adverse effect on the condition or business of the Investment Manager; (v) The description of the Inv

Appears in 1 contract

Sources: Underwriting Agreement (Aberdeen Australia Equity Fund Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(kk), (ll) and (mm) or 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company in all material respects of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, shall have been filed in the 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) 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 and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened. (b) ~~All corporate~~The Company shall have requested and caused S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, ~~partnership and limited liability company proceedings and other legal matters incident~~ counsel for the Company, to furnish to the ~~authorization~~Representative an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and in form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be substance reasonably satisfactory ~~in all material respects~~ to the Representative. (c) The Representative shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion letter and negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and addressed to the Representative, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel ~~all~~ such documents ~~and information that~~ as they ~~may~~ reasonably request ~~to enable~~ for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Underwriters a certificate of the Company, signed by (x) the chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date or any settlement date, as the case may be, 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: (1) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except in the case of Section 1 (kk), (ll) and (mm) or to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) at the Execution Time and on the Closing Date or any settlement date, as the case may be, 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 hereunder at or prior to the Closing Date or any settlement date, as the case may be; (2) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto); and (3) 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 or pursuant to Section 8A under the Act have been instituted or, to the Company’s knowledge, threatened. (e) At the Execution Time and at the Closing Date or any settlement date, as the case may be, the Company shall have requested and caused ~~▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands counsel for the Company,~~ KPMG LLP to ~~have furnished~~ furnish to the ~~Representatives their written opinion~~Underwriters a “comfort” letter, dated as of the Execution Time, and a bring-down “comfort letter,” dated as of the Closing Date ~~and addressed to~~ or any settlement date, as the ~~Representatives~~case may be, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~substantially~~ confirming that they are independent registered public accountants within the meaning of the Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the ~~effect that:~~audited and unaudited financial statements and other financial and accounting information of the Company contained in the Disclosure Package and the Prospectus, including any supplement thereto at the date of the applicable letter.

Appears in 1 contract

Sources: Underwriting Agreement (GMR Solutions Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters ~~to purchase the Firm Securities and the Option Securities, as the case may be,~~ under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Teekay Parties contained~~ Company and the Trust set forth herein as of the ~~Execution Time~~Closing Date, and if applicable, as of the ~~Closing Date and any~~ Option Closing ~~Date pursuant to Section 3 hereof~~Date, as the case may be, to the accuracy of the statements of the ~~Teekay Parties made in any certificates delivered pursuant to the provisions hereof~~Offerors' directors and officers, to the performance by the ~~Teekay Parties~~ Company and the Trust of their obligations ~~hereunder~~ hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Representatives: (a) The ~~Final Prospectus,~~ Registration Statement and ~~any supplement thereto,~~ all post-effective amendments thereto shall have been ~~filed~~ 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 Representatives, but in any event not later than 5:30 p.m., eastern time, on the ~~manner and within~~ third full business day following the date hereof; if the Offerors omitted information from the Registration Statement at the time ~~period required by~~ it became effective in reliance on Rule ~~424(b); any other material required to be filed by the Company pursuant to Rule 433(d)~~ 430A under the ~~Act~~ Securities Act, the Prospectus shall have been filed with the Commission ~~within~~ in compliance with Rule 424(b) and Rule 430A under the ~~applicable time periods prescribed for such filings by Rule 433~~Securities Act; ~~and~~ 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 and~~ issued; no ~~proceedings~~ proceeding for ~~that purpose~~ the issuance of such an order shall have been ~~instituted~~ initiated or ~~threatened~~shall be pending or, to the knowledge of the Offerors or the Representatives, threatened or contemplated by the Commission; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Representative and complied with to the Representatives' satisfaction. (b) ~~All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement~~The Preferred Securities, the ~~Class A Common Stock~~Guarantee and the Subordinated Debentures shall have been qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the Blue Sky Laws of such jurisdictions as shall have been reasonably specified by the Representative and the offering contemplated by this Agreement shall have been cleared by the NASD. (c) Since the dates as of which information is given in the Registration Statement: (i) There shall not have been any material adverse change, or any development involving a prospective material adverse change, in the ability of the Company or any Subsidiary to conduct their respective business (whether by reason of any court, legislative, other governmental action, order, decree, or otherwise), or in the general affairs, condition (financial and otherwise) business, prospects, properties, management, financial position or earnings, results of operations, or net worth of the Company or any Subsidiary, whether or not arising from transactions in the ordinary course of business; and (ii) Neither the Company nor any Subsidiary shall have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident, or other calamity (whether or not insured) or from any court or governmental action, order, or decree. The effect of which on the Company or any Subsidiary, in any such case described in clause (c)(i) or (ii) above, is in the reasonable opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Preferred Securities on the terms and in the manner contemplated in the Registration Statement and the ~~Final~~ Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (cd) There shall have been furnished to the Representatives on the Closing Date and the Option Closing Date, except as otherwise expressly provided below: (i) An opinion of ▇▇▇▇▇▇▇, Spidi, Sloane & ▇▇▇▇▇, P.C., counsel to the Company, dated as of the Closing Date and any Option Closing Date, in form and substance substantially in the form attached hereto as Exhibit A. (ii) The favorable opinion, dated the Closing Date and the Option Closing Date, of White & Case, counsel to the Trust Company ~~shall have requested~~ and ~~caused~~ Trust Delaware, substantially in the form attached hereto as Exhibit B. (iii) The favorable opinion, dated the Closing Date and the Option Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Company and the Trust, substantially to the effect and in the form attached hereto as Exhibit C. (iv) The favorable opinion, dated the Closing Date and the Option Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ~~(New York) LLP~~& Finger, special Delaware counsel to Trust Delaware, substantially to the effect and in the form attached hereto as Exhibit D. (v) The favorable opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇▇ Islands~~ , counsel ~~for~~ to the Underwriters as to such matters as the Representatives shall reasonably request. In rendering such opinions specified in clause (d)(ii), (iii) or (iv) above, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Representatives, and (B) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, ~~to have furnished to~~ its Subsidiaries and the ~~Representatives their written opinion, dated~~ Trust and certificates of public officials. (e) `At the time this Agreement is executed and also on the Closing Date and ~~addressed~~ the Option Closing Date, as the case may be, there shall be delivered to each of the ~~Representatives~~Representatives a letter from Deloitte & Touche LLP, the Company's independent accountants, the first letter to be dated the date of this Agreement, the second letter to be dated the Closing Date, and the third letter to be dated the Option Closing Date, if any, which shall be in form and substance reasonably satisfactory to the ~~Representatives~~Representatives and shall contain information as of a date within five days of the date of such letter. There shall not have been any change set forth in any letter referred to in this subsection (e) that makes it impracticable or inadvisable in the judgment of the Representatives to proceed with the public offering or purchase of the Preferred Securities as contemplated hereby. (f) On the Closing Date and on the Option Closing Date, ~~substantially~~ a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement and this Agreement and that: (i) The representations and warranties of the Offerors in this Agreement are true and correct in all material respects on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be and the Offerors have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be; and (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and, to the knowledge of the respective signatories, no proceeding for that purpose has been instituted or is pending or contemplated under the Securities Act; (iii) Each of the respective signatories of the certificate has carefully examined the Registration Statement, the Prospectus, and any amendments or supplements thereto, and such documents contain all material statements and information required to be made therein, and neither the Registration Statement nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forth; provided, however, that no representation need be made as to information contained in or omitted from the Registration Statement or any amendment or supplement in reliance upon and in conformity with written information furnished to the Company and the Trust by or on behalf of any Underwriter through the Representatives; and (iv) Since the date on which the Registration Statement was initially filed with the Commission, there has not been any material adverse change or a development involving a prospective material adverse change in the business, properties, financial condition, or earnings of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as disclosed in the Registration Statement as heretofore amended or (but only if the Representatives expressly consent thereto in writing) as disclosed in an amendment or supplement thereto filed with the Commission and delivered to the Representatives after the execution of this Agreement; since such date and except as so disclosed or in the ordinary course of business, neither the Company nor any Subsidiary has incurred any liability or obligation, direct or indirect, or entered into any transaction that is material to the Company or such Subsidiary, as the case may be, not contemplated in the Prospectus; since such date and except as so disclosed there has not been any change in the outstanding capital stock of the Company, or any change that is material to the Company and its Subsidiaries taken as a whole in the short-term debt or long-term debt of the Company or any Subsidiary; since such date and except as so disclosed, neither the Company nor any of its Subsidiaries have incurred any material contingent obligations, and no material litigation is pending or, to their knowledge threatened against the Company or any Subsidiary; and, since such date and except as so disclosed, neither the Company nor any of its Subsidiaries have sustained any material loss or interference from any strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order, or decree. (g) Prior to the Closing Date and any Option Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request in connection with the offering of the Preferred Securities. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriters by notice from the Representatives to the Company at any time without liability on the part of any Underwriters, including the Representatives, or the Company, except for expenses to be paid by the Company pursuant to Section 7 hereof or reimbursed by the Company pursuant to Section 9 and except to the extent provided in Section 11.

Appears in 1 contract

Sources: Underwriting Agreement (Sun Capital Trust Ii)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Preliminary Final Prospectus and the Final Prospectus, and any supplement thereto, ~~shall~~ have been filed in the manner and within the time period required by Rule 424(b); the Issuer Free Writing Prospectus, if any, and any other material required to be filed by the Company pursuant to Rule 433(d) under the ~~Act~~ 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~~ that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) ~~All corporate~~The Company shall have requested and caused K▇▇▇▇ ▇▇▇▇ LLP, ~~partnership~~ counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, to the effect that: (i) each of the Company and Spirit Master Funding LLC, Spirit Master Funding II, LLC, Spirit Master Funding III, LLC, Spirit Finance Acquisitions LLC, Spirit SPE Portfolio 2006-1, LLC, Spirit SPE Portfolio 2006-2, LLC and Spirit SPE Portfolio 2006-3, LLC (each individually a “Subsidiary” and collectively the “Subsidiaries”) has been duly incorporated or organized and is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate or limited liability company ~~proceedings~~ power and ~~other legal matters incident~~ authority to own or lease, as the ~~authorization~~case may be, ~~form~~ and ~~validity of this Agreement,~~ to operate its properties and conduct its business as described in the ~~Class A Common Stock, the Registration Statement~~ Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing under the laws of each jurisdiction which requires such qualification except as would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. (ii) all the outstanding shares of capital stock of each Subsidiary that is a corporation have been duly and validly authorized and issued and are fully paid and nonassessable, and all of the outstanding equity interests of any Subsidiary that is not a corporation have been duly and validly authorized and validly issued and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding equity interests of the Subsidiaries are owned by the Company either directly or through wholly owned Subsidiaries free and clear of any perfected security interest (other ~~legal matters relating~~ than Spirit Master Funding, LLC and Spirit Master Funding II, LLC) and, to ~~this Agreement~~ the knowledge of such counsel, any other security interest, claim, lien or encumbrance; (iii) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and ~~transactions contemplated hereby shall be reasonably satisfactory~~ the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance 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; (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 Disclosure Package and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Preliminary Final Prospectus or Final 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 Preliminary Final Prospectus and the Final Prospectus under the headings “Material United States Federal Income Tax Considerations,” “ERISA Considerations,” “Description of our Capital Stock,” “Risk Factors — Risks Related to Our Organization and Structure,” “Risk Factors — Risks Related to Our REIT Status,” and Items 14 and 15 of the Registration Statement, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings; (v) Commencing with the Company’s taxable year ended December 31, 2003, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT pursuant to Sections 856 through 860 of the Code, and the Company’s current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; (vi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final 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 or any notice that would prevent its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its date and 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); (vii) such counsel has no reason to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package and the price to the public, the number of Underwritten Securities, the number of Option Securities and the underwriting discount on the cover page of the Final Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of 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); (viii) this Agreement has been duly authorized, executed and delivered by the Company; (ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (x) no consent, approval, authorization, filing with or order of any court or governmental agency or body 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 Underwriters in the manner contemplated in this Agreement and in the Preliminary Final Prospectus and the Final Prospectus and such other approvals as have been obtained; (xi) neither 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 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 bylaws of the Company or its subsidiaries, (ii) except as would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (iii) except as would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; (xii) the descriptions of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted and exercised thereunder, set forth in the Disclosure Package and the Final Prospectus accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and rights; and (xiii) except as disclosed in the Disclosure Package and the Final Prospectus, to the knowledge of such counsel, there are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived. 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The Representative shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, 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 Representative may reasonably require, and the Company shall have furnished to such counsel ~~all~~ such documents ~~and information that~~ as they ~~may reasonably~~ request ~~to enable~~ for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chairman of the Board or the President/Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto, as well as each electronic roadshow used in connection with this offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent 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 or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~▇▇▇▇▇▇, ▇▇▇▇▇▇~~ Ernst & ~~▇▇▇▇▇▇▇▇ (New York) LLP, special ▇▇▇▇▇▇▇▇ Islands counsel for the Company,~~ Young LLP to have furnished to the ~~Representatives their written opinion~~Representative, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and as of the Closing ~~Date and addressed to the Representatives~~Date, in form and substance ~~reasonably~~ satisfactory to the ~~Representatives, substantially~~ Representative. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (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 (i) any 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 change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect ~~that:~~of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, 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 Final Prospectus (exclusive of any supplement thereto). (g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt secu

Appears in 1 contract

Sources: Underwriting Agreement (Spirit Finance Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company and the Selling Stockholder made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company and the Selling Stockholder of their respective obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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) 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 and no proceedings for that purpose shall have been instituted or threatened. (b) ~~All corporate~~The Company shall have requested and caused Sidley Austin LLP and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ~~partnership and limited liability company proceedings and other legal matters incident~~ respectively, counsel for the Company, to have furnished to the ~~authorization~~Representatives their opinion, ~~form~~ dated the Closing Date and ~~validity~~ addressed to the Representatives, substantially to the effect set forth on Exhibits C-1 and C-2 hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of ~~this Agreement~~laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the ~~Class A Common Stock~~extent they deem proper and specified in such opinion, upon the ~~Registration Statement~~ opinion of other counsel of good standing whom they believe to be reliable and ~~the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be~~ who are reasonably satisfactory ~~in all material respects~~ to counsel for the ~~Underwriters~~Underwriters and (B) as to matters of fact, ~~and~~ to the extent they deem proper, on certificates of responsible officers of 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~~public officials. (c) The ~~Company~~ Selling Stockholder shall have requested and caused ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~▇ (New York)~~ ▇, LLC and Sidley Austin LLP, ~~special~~ respectively, counsel for the Selling Stockholder, to have furnished to the Representatives their opinions dated the Closing Date and addressed to the Representatives, substantially to the effect set forth on Exhibits D-1 and D-2 hereto. In rendering such opinions, each such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware 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 reasonably satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholder and public officials. (d) The Representatives shall have received from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~Islands~~ LLP, counsel for the ~~Company~~Underwriters, ~~to have furnished to the Representatives their written opinion~~such opinion or opinions, dated the Closing Date and addressed to the Representatives, 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 Representatives may reasonably require, and the Company and the Selling Stockholder 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 Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, 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) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (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 Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (f) The Selling Stockholder shall have furnished to the Representatives a certificate, signed by an officer of the authorized signatory of the Selling Stockholder, dated the Closing Date, to the effect that the Selling Stockholder has carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date. (g) The Company shall have requested and caused Ernst & Young, LLP to have furnished to the Representatives, 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 ~~reasonably~~ satisfactory to the Representatives, ~~substantially to~~ confirming that they are independent accountants within the meaning of the Securities 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 unaudited interim financial information of the Company for the nine-month period ended September 30, 2012 and as at September 30, 2012, 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 included in the Registration Statement, the Preliminary Prospectus and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Securities 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 nine-month period ended September 30, 2012 and as at September 30, 2012; 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 audit, compensation, executive and nominating and corporate governance 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 transactions and events subsequent to December 31, 2011, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Securities Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus; (2) there were any changes, at a specified date not more than five days prior to the date of the letter, in the total liabilities of the Company and its subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company or members’ equity of the Predecessor as compared with the amounts shown on the September 30, 2012 consolidated balance sheet included in the Registration Statement, the Preliminary Prospectus and the Prospectus, or for the period from October 1, 2012 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net revenues or in total net loss of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (3) the information included in the Registration Statement, the Preliminary Prospectus and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K. (iii) 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 and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus, including the information set forth under the captions “Summary of Selected Financial Data” and “Selected Financial Data” in the Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (h) 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 Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any 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 change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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 sole judgment of the Representatives, 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 Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (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 436(g) under the Securities 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) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives. (j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and from the Selling Stockholder addressed to Citigroup Global Markets Inc. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (TRI Pointe Homes, LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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) under the ~~Act~~ 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇▇ (New York)~~ LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the Company, to have furnished to the Representatives their ~~written~~ opinion, dated the Closing Date and addressed to the Representatives, in the form of Exhibit A. (c) The Representatives shall have received from Winston & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, 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 such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, 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) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives, ~~substantially to~~ confirming that they are independent accountants within the meaning of the 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 three-month period ended March 31, 2010, and as at March 31, 2010, 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 included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form 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 three-month period ended March 31, 2010 and as at March 31, 2010, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final 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 comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, board of directors and committees of the board of directors 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 transactions and events subsequent to December 31, 2009, 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, the Preliminary Prospectus and the Final Prospectus do not comply as to form 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 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 the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; (2) with respect to the period subsequent to March 31, 2010, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or common stock of the Company or decreases in the shareholders’ equity or the net current assets of the Company and its subsidiaries as compared with the amounts shown on the March 31, 2010 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from April 1, 2010 to such specified date there were any decreases, as compared with the three-month period ended March 31, 2009 in net sales or income before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (3) the information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (iii) 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 and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “Summary,” “Capitalization,” “Selected Consolidated Financial Data,” Management Discussion and Analysis” and “Business” in the Preliminary Prospectus and the Final Prospectus, the information included or incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009 and its Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (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 amendment or supplement thereto), there shall not have been (i) any 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 change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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 sole judgment of the Representatives, 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 Final Prospectus (exclusive of any amendment or supplement thereto). (g) 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 436(g)(2) 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. (h) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives. (i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit B hereto from each officer and director of the Company set forth on Schedule IV, addressed to the Representatives. (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Winston & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Chicago, Illinois 60601, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Federal Signal Corp /De/)

Appears in 1 contract

Sources: Underwriting Agreement (Outbrain Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Gazit-Globe LTD)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ 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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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) 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 and no proceedings for that purpose shall have been instituted or threatened. (b) ~~All corporate~~The Company shall have requested and caused Ruskin Moscou Faltischek, ~~partnership and limited liability company proceedings and other legal matters incident~~ P.C. to have furnished to the ~~authorization~~Representative their opinion, ~~form~~ dated the Closing Date and ~~validity~~ addressed to the Representative, to the effect that: (i) each of the Company and CVD Materials Corporation, a New York corporation (the “Subsidiary”) 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 or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the 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 wherein it owns or leases material properties or conducts material business and where the failure to be so qualified would, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiary, taken as a whole, except as set forth in or contemplated in the Prospectus; (ii) all the outstanding shares of capital stock of the Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Subsidiary 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, any other security interests, claims, liens or encumbrances; (iii) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the ~~Class A Common Stock~~certificates for the Securities are in valid and sufficient form; and to the knowledge of such counsel, the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and to the knowledge of such counsel, except as set forth in the Disclosure Package and the 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; (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 its Subsidiary or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Disclosure Package and the Prospectus, and there is no franchise, contract or other document 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 in the Preliminary Prospectus and Prospectus under the headings “Description of Securities” and the statements in “Part II: Indemnification of Directors and Officers” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings; (v) the Registration Statement has become effective under the 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 or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the ~~Final Prospectus~~Prospectus (other than the financial statements and other financial and statistical information contained therein, ~~and all other legal matters relating~~ as to ~~this Agreement and transactions contemplated hereby shall be reasonably satisfactory~~ which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; nothing has come to such counsel’s attention that would reasonably cause it to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and 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) nothing has come to such counsel’s attention that would reasonably cause it to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package and the price to the public, the number of Underwritten Securities, the number of Option Securities and the underwriting discount on the cover page of the Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading; (vii) this Agreement has been duly authorized, executed and delivered by the Company; (viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (ix) no consent, approval, authorization filing with or order of any court or governmental agency or body 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 or with the NASD in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus; (x) neither 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 conflict with, result in a breach or violation, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Subsidiary pursuant to, (i) the charter or by-laws of the Company or its Subsidiary or (ii) to the knowledge of such counsel, the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition or covenant or instrument to which the Company or its Subsidiary is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, and to the knowledge of such counsel, judgment, order or decree applicable to the Company or its Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its Subsidiary or any of its or their properties, which violation, default or lien imposition would, in the case of clauses (ii) and (iii) above either individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiary, 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; (xi) to the knowledge of such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and 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 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on representations of the Company in this Agreement, and certificates of responsible officers of the Company and its Subsidiary and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The Representative shall have received from K▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, 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 Representative may reasonably require, and the Company shall have furnished to such counsel ~~all~~ such documents ~~and information that~~ as they ~~may reasonably~~ request ~~to enable~~ for the purpose of enabling them to pass upon such matters. (cd) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any amendment or supplement thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (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 Prospectus, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiary, 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. (e) The Company shall have requested and caused Albrecht, Viggiano, Zureck & Company, P.C. to have furnished to the Representative, at the Execution Time, a letter dated as of the Execution Time, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder stating in effect that: (i) they are independent registered public accountants with respect to the Company and its Subsidiary within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Act and the rules and regulations of the Commission thereunder and they are not in violation of the auditor independence requirements of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; and (ii) in their opinion the audited financial statements and financial statement schedules included 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 related published rules and regulations adopted by the Commission. (f) The Company shall have requested and caused M▇▇▇▇ S▇▇▇▇▇▇▇, ~~▇▇▇▇▇▇ &~~ P.C. to have furnished to the Representative, 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 the Representative, confirming that they are independent accountants within the meaning of the Act and the 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 three-month period ended June 30, 2007, and as at June 30, 2007 stating in effect that: (i) they are independent registered public accountants with respect to the Company and its Subsidiary within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Act and the rules and regulations of the Commission thereunder and they are not in violation of the auditor independence requirements of the S▇▇▇▇▇▇▇~~▇ (New York) LLP, special ▇▇▇~~-▇▇▇▇▇ ~~Islands counsel~~ Act; (ii) in their opinion the audited financial statements and financial statement schedules included 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 related published rules and regulations adopted by the Commission; (iii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its Subsidiary; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the ~~Company~~three-month period ended June 30, ~~to have furnished~~ 2007, and as at June 30, 2007; 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 ~~Representatives~~ comments set forth in such letter; a reading of the minutes of the meetings of the shareholders, directors and audit, stock option and compensation and nominating, governance and compliance committees of the Company and the Subsidiary; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its Subsidiary as to transactions and events subsequent to December 31, 2006, nothing came to their ~~written opinion, dated the Closing Date and addressed~~ attention which caused them to ~~the Representatives, in form and substance reasonably satisfactory to the Representatives, substantially to the effect~~ believe that: (1) any unaudited financial statements included 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 registration statements on Form S-1; and said unaudited financial statements are not in conformity

Appears in 1 contract

Sources: Underwriting Agreement (CVD Equipment Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm Securities and the Option Securities, as the case may be,~~ Notes shall be subject to the accuracy of the representations and warranties on the part of the ~~Teekay Parties~~ Company contained herein ~~as of~~ at the ~~Execution~~ Applicable Time, the Execution Time and the Closing ~~Date and any Option Closing Date pursuant to Section 3 hereof~~Date, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) ~~The Final Prospectus~~▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ~~and any supplement thereto~~special counsel for the Company, shall have ~~been filed~~ furnished to the Representatives its opinion and letter, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in ~~the manner~~ Exhibits A 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) 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 and no proceedings for that purpose shall have been instituted or threatenedB hereto. (b) ~~All corporate~~The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Disclosure Package, the Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel ~~all~~ such documents ~~and information that~~ as they ~~may~~ reasonably request ~~to enable~~ for the purpose of enabling them to pass upon such matters. (c) The Company shall have furnished to the Representatives a certificate of the Company, signed by the chief executive officer or executive vice president and any of the chief financial officer, the treasurer and the principal accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been no event or occurrence that would reasonably be expected to result in a material adverse effect on the general affairs, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, except as set forth in or contemplated by the Disclosure Package and the Prospectus. (d) On the date hereof, the Representatives shall have requested and the Company shall have caused Deloitte & Touche LLP to furnish to the Representatives a comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Representatives, covering the financial information in the Disclosure Package and other customary information. (e) On the Closing Date, the Representatives shall have received from Deloitte & Touche LLP, a letter dated such date, in form and substance reasonably satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 5, except that (i) it shall cover the financial information in the Prospectus and any amendment or supplement thereto and (ii) the specified date referred to therein for the carrying out of procedures shall be no more than three Business Days prior to the Closing Date, as the case may be. (f) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraphs (d) and (e) of this Section 5; or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, results of operations, business operations, assets or liabilities of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated by the Disclosure Package and the Prospectus, the effect of which is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Notes as contemplated by the Disclosure Package and the Prospectus. (g) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Representatives shall have received counterparts, conformed as executed, thereof. (h) At the Closing Date, the Notes shall be eligible for clearance and settlement through DTC. (i) Subsequent to the Applicable 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 Section 3(a)(62) 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) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 will be delivered at the office of ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ~~(New York) LLP, special~~ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ~~Islands counsel for the Company~~▇▇▇▇, ~~to have furnished to the Representatives their written opinion~~▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~dated~~ on the Closing ~~Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, substantially to the effect that:~~Date.

Appears in 1 contract

Sources: Underwriting Agreement (RR Donnelley & Sons Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Firm~~ Underwritten Securities ~~and~~ -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 ~~Teekay Parties~~ Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~ settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Teekay Parties~~ Company made in any certificates ~~delivered~~ pursuant to the provisions hereof, to the performance by the ~~Teekay Parties~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions: (a) The ~~Final~~ Prospectus, and any supplement thereto, ~~shall~~ have been filed in the 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) 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 and no proceedings for that purpose shall have been instituted or threatened. (b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) The Company shall have requested and caused Ropes & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions (including negative assurance statements) dated the Closing Date and addressed to the Representatives in form and substance reasonably acceptable to the Representatives. (c) The Representatives shall have received from ▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇~~▇ ~~(New York)~~ LLP, ~~special ▇▇▇▇▇▇▇▇ Islands~~ counsel for the ~~Company~~Underwriters, ~~to have furnished to the Representatives their written opinion~~such opinion or opinions and negative assurance letter, dated the Closing Date and addressed to the Representatives, 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 Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date, to the effect that the 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) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing 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 Date; (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 contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation 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 correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused Withum to have furnished to the Representatives, 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 ~~reasonably~~ satisfactory to the Representatives, ~~substantially~~ 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 July 30, 2020 (inception) through August 12, 2020, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the 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. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the 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 Prospectus (exclusive of any supplement thereto), there shall not have been (i) any 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 change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except 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 sole judgment of the Representatives, 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 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 New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreements and the Insider Letter. (k) At least one (1) Business Day prior to the Closing Date, the Company shall have caused certain proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, 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 the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Sports Entertainment Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters ~~to purchase the Firm Securities and the Option Securities, as the case may be,~~ under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Teekay Parties contained~~ Company and the Trust set forth herein as of the ~~Execution Time~~Closing Date, and if applicable, as of the ~~Closing Date and any~~ Option Closing ~~Date pursuant to Section 3 hereof~~Date, as the case may be, to the accuracy of the statements of the ~~Teekay Parties made in any certificates delivered pursuant to the provisions hereof~~Offerors' directors and officers, to the performance by the ~~Teekay Parties~~ Company and the Trust of their obligations ~~hereunder~~ hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Representative: (a) The ~~Final Prospectus,~~ Registration Statement and ~~any supplement thereto,~~ all post-effective amendments thereto shall have been ~~filed~~ 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 Representative, but in any event not later than 5:30 p.m., eastern time, on the ~~manner and within~~ third full business day following the date hereof; if the Offerors omitted information from the Registration Statement at the time ~~period required by~~ it became effective in reliance on Rule ~~424(b); any other material required to be filed by the Company pursuant to Rule 433(d)~~ 430A under the ~~Act~~ Securities Act, the Prospectus shall have been filed with the Commission ~~within~~ in compliance with Rule 424(b) and Rule 430A under the ~~applicable time periods prescribed for such filings by Rule 433~~Securities Act; ~~and~~ 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 and~~ issued; no ~~proceedings~~ proceeding for ~~that purpose~~ the issuance of such an order shall have been ~~instituted~~ initiated or ~~threatened~~shall be pending or, to the knowledge of the Offerors or the Representative, threatened or contemplated by the Commission; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Representative and complied with to the Representative's satisfaction. (b) ~~All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement~~The Preferred Securities, the ~~Class A Common Stock~~Guarantee and the Subordinated Debentures shall have been qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the Blue Sky Laws of such jurisdictions as shall have been reasonably specified by the Representative and the offering contemplated by this Agreement shall have been cleared by the NASD. (a) Since the dates as of which information is given in the Registration Statement: (i) There shall not have been any material adverse change, or any development involving a prospective material adverse change, in the ability of the Company or any Subsidiary to conduct their respective business (whether by reason of any court, legislative, other governmental action, order, decree, or otherwise), or in the general affairs, condition (financial and otherwise) business, prospects, properties, management, financial position or earnings, results of operations, or net worth of the Company or any Subsidiary, whether or not arising from transactions in the ordinary course of business; and (ii) Neither the Company nor any Subsidiary shall have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident, or other calamity (whether or not insured) or from any court or governmental action, order, or decree; the effect of which on the Company or any Subsidiary, in any such case described in clause (c)(i) or (ii) above, is in the reasonable opinion of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Preferred Securities on the terms and in the manner contemplated in the Registration Statement and the ~~Final~~ Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (cd) ~~The Company~~ There shall have ~~requested and caused~~ been furnished to the Representative on the Closing Date, except as otherwise expressly provided below: (i) An opinion of Malizia, Spidi, Sloane & Fisch, P.▇~~▇▇▇▇▇~~., ▇▇▇nsel to the Compan▇, ▇ated as of the Closing Date and any Option Closing Date, in form and substance substantially in the form attached hereto as Exhibit A. (ii) The favorable opinion, dated the Closing Date, of White & Case, counsel to the Trust Company and Trust Delaware, substantially in the form attached hereto as Exhibit B. (iii) The favorable opinion, dated the Closing Date, of Richards, Layton & Finger, specia▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇sel to the Company and the Trust, substantially to the effect and in the form attached hereto as Exhibit C. (iv) The favorable opinion, dated the Closing Date, of Arnold & Porter, counsel to th▇ ▇▇▇erwri▇▇▇▇ as to such matters as the Representative shall reasonably request. In rendering such opinions specified in clause (d)(ii), (iii) or (iv) above, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) ~~LLP~~such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Representative, ~~special~~ and (B) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and the Trust and certificates of public officials. (e) At the time this Agreement is executed and also on the Closing Date and the Option Closing Date, as the case may be, there shall be delivered to the Representative letters addressed to the Representative from Grant Thornton LLP and Arthur ▇▇▇▇▇▇▇▇ ~~Islands counsel for~~ ▇▇▇, the ~~Company~~Compa▇▇'▇ in▇▇▇▇▇▇▇▇t accountants, the first letter to ~~have furnished~~ be dated the date of this Agreement, the second letter to ~~the Representatives their written opinion,~~ be dated the Closing ~~Date~~ Date, and ~~addressed~~ the third letter to be dated the ~~Representatives~~Option Closing Date, if any, which shall be in form and substance reasonably satisfactory to the ~~Representatives~~Representative and shall contain information as of a date within five days of the date of such letter. There shall not have been any change set forth in any letter referred to in this subsection (e) that makes it impracticable or inadvisable in the judgment of the Representative to proceed with the public offering or purchase of the Preferred Securities as contemplated hereby. (f) On the Closing Date, ~~substantially~~ a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement and this Agreement and that: (i) The representations and warranties of the Offerors in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Offerors have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and, to the knowledge of the respective signatories, no proceeding for that purpose has been instituted or is pending or contemplated under the Securities Act; (iii) Each of the respective signatories of the certificate has carefully examined the Registration Statement, the Prospectus, and any amendments or supplements thereto, and such documents contain all material statements and information required to be made therein, and neither the Registration Statement nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forth; provided, however, that no representation need be made as to information contained in or omitted from the Registration Statement or any amendment or supplement in reliance upon and in conformity with written information furnished to the Company and the Trust by or on behalf of any Underwriter through the Representative; and (iv) Since the date on which the Registration Statement was initially filed with the Commission, there has not been any material adverse change or a development involving a prospective material adverse change in the business, properties, financial condition, or earnings of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as disclosed in the Registration Statement as heretofore amended or (but only if the Representative expressly consents thereto in writing) as disclosed in an amendment or supplement thereto filed with the Commission and delivered to the Representative after the execution of this Agreement; since such date and except as so disclosed or in the ordinary course of business, neither the Company nor any Subsidiary has incurred any liability or obligation, direct or indirect, or entered into any transaction that is material to the Company or such Subsidiary, as the case may be, not contemplated in the Prospectus; since such date and except as so disclosed there has not been any change in the outstanding capital stock of the Company, or any change that is material to the Company and its Subsidiaries taken as a whole in the short-term debt or long-term debt of the Company or any Subsidiary; since such date and except as so disclosed, neither the Company nor any of its Subsidiaries have incurred any material contingent obligations, and no material litigation is pending or, to their knowledge threatened against the Company or any Subsidiary; and, since such date and except as so disclosed, neither the Company nor any of its Subsidiaries have sustained any material loss or interference from any strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order, or decree. (g) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request in connection with the offering of the Preferred Securities. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriters by notice from the Representative to the Company at any time without liability on the part of any Underwriters, including the Representative, or the Company, except for expenses to be paid by the Company pursuant to Section 7 hereof or reimbursed by the Company pursuant to Section 9 and except to the extent provided in Section 11.

Appears in 1 contract

Sources: Underwriting Agreement (GCB Capital Trust)

Common use of Conditions to the Obligations of the Underwriters Clause in Contracts