Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("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 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 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 Iii), Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representatives Representative(s) or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ("“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 City time, the Commission’s close of business on the second business day following the date execution and delivery of this Agreement or such later date and time as shall be consented to in writing by the RepresentativesRepresentative(s).
(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 RepresentativesRepresentative(s).
(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 RepresentativesRepresentative(s), 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 Representative(s) the opinion of a Deputy the Chief Legal Officer, General Counsel or the Chief Legal Officer an Associate General Counsel for the Company, dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized incorporated and is validly existing and in good standing as a corporation under the laws law of the jurisdiction of its incorporation with all requisite and has full 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 legally 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 legally 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 to an implied covenant of good faith and fair dealing.
(iv) No consent, approval, authorization authorization, order, registration or order qualification 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 authorizations, orders registrations or orders qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities and the blue sky 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 that 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 ’s knowledge, neither the Company nor its Named any Significant Subsidiary that is organized under the laws of the United States or any State or territory thereof (a “Domestic Significant Subsidiary”) is in violation of its corporate charter or by-lawsorganizational documents, 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 any Domestic Significant Subsidiary pursuant to the terms of, or constitute a default under, any material agreementindenture, indenture mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the Company or its Named any Domestic Significant 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 any Domestic Significant Subsidiary or any orderstatute, rule rule, regulation or regulation any order known to such counsel of any court or governmental agency having jurisdiction over the Company, its Named any Domestic Significant 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 has been instituted 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 Each Domestic Significant Subsidiary has been duly incorporated and is a duly organized and validly existing as a corporation in good standing under the laws law of the jurisdiction of its incorporation with all requisite and each such subsidiary has the 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 the Domestic Significant Subsidiaries 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 wholeMaterial Adverse Effect.
(xii) All the outstanding shares of capital stock of the Company's Named each Domestic Significant 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 legal 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 described in the Final Prospectus which is not disclosed described and correctly summarized therein. Such opinion counsel shall also contain have furnished 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 statement need be expressed made 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 opinionopinion and statement, such counsel may rely upon opinions of local counsel satisfactory to the Representatives Representative(s) 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 Representative(s) 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 Representative(s) 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 Representative(s) a certificate of its Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or any Managing Director or Vice President and President, its Chief Financial Officer Officer, its Treasurer, its Financial Controller or its TreasurerGlobal Head of Asset Liability Management (or other officer performing substantially the same function), dated the day of 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 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.
(iii) (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 independent registered public accounting firm of independent public accountants shall have furnished to the Representatives Representative(s) 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 RepresentativesRepresentative(s), 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 ▇▇▇▇▇▇▇ Brothers Inc., 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 ▇▇▇▇▇▇▇ Brothers Inc., 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 to amounts shown in the most recent consolidated statement of financial condition statements of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, there was any change in the capital stock (other than issuances of common stock upon the exercise of options or employee awards and the repurchase of common stock in the ordinary course of business to provide for common stock to be issued pursuant to the exercise of options or employee awards), or increase in long-term indebtedness, or decrease in net assets or stockholders’ equity of the Company and its subsidiaries and (II) with respect to the period subsequent to from the date of the most recent consolidated financial statements of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus and extending through to the latest date as of which the Company and its subsidiaries have monthly financial statements, there was a any consolidated loss from operations before taxes or consolidated net loss or (III) with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 aloss
Appears in 2 contracts
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 If filing of the Commission Prospectus, or any supplement thereto, is required pursuant to Rule 424 not later than 5:00 p.m.424(b), New York City timethe Prospectus, 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 such supplement, will be included filed in the Registration Statement or manner and within 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 time period required 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 termsRule 424(b); 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 shall have been issued and no proceeding proceedings for that purpose is pending shall have been instituted or threatened by the Commissionthreatened.
(ixb) The Registration StatementCompany shall have requested and caused C▇▇▇▇▇▇▇ Chance US LLP, counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, to have furnished to the financial statements or other financial or statistical data or Representative their opinion, dated 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 Closing Date 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 addressed 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 thereinRepresentative, in the light of the circumstances under which they were madeform attached hereto as Exhibit A.
(c) The Company shall have requested and caused M▇▇▇▇ & V▇▇ ▇▇▇▇▇, 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 opinionPLLC, 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 have furnished to the execution of Representative their opinion, dated the Securities by Closing Date and addressed to the Representative, in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused C▇▇▇▇▇▇▇ Chance US LLP, tax counsel for the authentication thereof by Company, to have furnished to the Trustee.Representative their opinion, dated the Closing Date and addressed to the Representative, in the form attached hereto as Exhibit C.
(e) The Representatives Company shall have requested and caused V▇▇▇▇▇▇ LLP, Maryland counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form attached hereto as Exhibit D.
(f) The Representative shall have received from G▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(fg) The Company shall have furnished to the Representatives Representative a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect thatthat the signers of such certificate have examined the Registration Statement, the Prospectus, any supplements to the best of their knowledge after due inquiryProspectus, the Disclosure Package and this Agreement and that:
(i) The the representations and warranties of the Company and the Operating Partnership 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, Date and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date.;
(ii) No the Registration Statement has become effective under the Securities Act and 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 Prospectus, and any document that is incorporated by reference therein, there has been no material adverse effect on the condition (financial or threatenedotherwise), 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).
(xh) The Registration Statement does not contain any untrue statement of a material fact or omit Company shall have requested and caused Deloitte & Touche LLP to state any material fact required have furnished to be stated therein or necessary to make the statements therein not misleadingRepresentative, (y) at 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, Execution Time 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 at the Closing Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letterletters, dated respectively as of the day Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are independent auditors with respect to the Company registered public accountants within the meaning of the Securities Act and in form the applicable rules and substance satisfactory to regulations adopted by the Representatives, Commission thereunder and stating in effect that:
(i) In in their opinion, opinion the consolidated audited financial statements of the Company and its subsidiaries, and the supporting schedules, financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and audited reported on 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.adopted by the Commission;
(ii) On 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 ▇▇▇▇▇▇, its Subsidiaries; carrying out certain specified procedures (but not an audit 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 board committees of the Company and ▇▇▇▇▇▇, the Subsidiaries; 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, 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 ProspectusDecember 31, 2006, nothing came to their attention that which 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 statementsDecember 31, 2006, there was a consolidated net loss or (III) with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5were any changes, 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 at a specified date not more than three business five 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 debt of the Company and its subsidiariesSubsidiaries 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 and the Prospectus, or for the period from January 1, 2007 to such specified date there were any decreases, as compared with the amounts shown on the statement of operations for the corresponding period in the most recent previous year, in consolidated statement of financial condition net revenues of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; Subsidiaries, except in all instances for increases changes or decreases set forth in such letter, in which case the letter shall be aaccompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; and
(B) the information included or incorporated by reference in the Registration Statement and the 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;
(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 or incorporated by reference in the Registration Statement 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 (g) include any supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference 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 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, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the 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) and the Prospectus (exclusive of any supplement thereto).
(j) 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.
(k) 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.
(l) 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 Representative.
(m) The NASD, upon review of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(n) The Company shall have furnished to the Representative a letter in the form of Exhibit E hereto from each director and executive officer of the Company named in the Registration Statement and the Prospectus. 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▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, at 3▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Cogdell Spencer Inc.), Underwriting Agreement (Cogdell Spencer Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and Carnival plc contained herein (or the accuracy in all material respects with respect to any representation or warranty on the part of the Company and Carnival plc which has no materiality qualification) as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and Carnival plc made in any certificatescertificates pursuant to the provisions hereof, opinionsto the performance by each of the Company and Carnival plc of its obligations hereunder, affidavitsto the due execution and delivery of the Indenture and the Agency Agreement, written statements to the absence of any event or letters condition which would give you the right to terminate this Agreement and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, 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, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the Closing Date, the Company shall have furnished to you the Representatives opinion of the General Counsel to the Company and Carnival plc, or an Associate or Deputy General Counsel to the Company and Carnival plc that practices in the area of corporate and securities law, dated the Closing Date, substantially in the form of Exhibit A hereto.
(c) At the Closing Date, the Company shall have furnished to you the opinion and negative assurance letter of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and Carnival plc, each dated the Closing Date, substantially in the form of Exhibit B and C hereto, respectively, the opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ LLP, substantially in the form of Exhibit D hereto, and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 substantially in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction form 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 ProspectusExhibit E hereto.
(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 Underwriters shall have received from Sidley Austin llp, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto), any Issuer Free Writing Prospectus and other related matters as the Representatives may reasonably require, and the Company and Carnival plc shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company and Carnival plc shall have furnished to the Representatives Underwriters a certificate of its Chief Executive Officerthe Company and of Carnival plc, its signed by any two officers of the Company and Carnival plc, each of whom is a Vice President, Senior Vice President or any Managing Director or Executive Vice President of the Company and its Chief Financial Officer or its TreasurerCarnival plc, dated the day of the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments to any of the foregoing and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company and Carnival plc 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, Date and each of the Company and Carnival plc 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 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 or threatenedincorporated by reference in the Disclosure Package and the Final Prospectus, the Company has made all filings with the Commission and announcements, in either case required to be made by the Act or the Exchange Act.
(xf) 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 Underwriters shall have received from PricewaterhouseCoopers LLP, independent registered public accounting firm for the statements therein not misleading, (y) Company and Carnival plc at 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, Execution Time 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 at the Closing Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letterletters, dated as of the day Execution Time and as of the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent auditors with respect to the Company and Carnival plc 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 respective applicable published rules and regulations thereunder.
(ii) On the basis of a reading thereunder and containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited, unaudited consolidated and pro forma financial statements of the Company statements, as applicable, and its subsidiaries, if any, included certain financial information contained or incorporated by reference in the Registration Statement and Statement, the Final Preliminary 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.
(Cg) (I) as of Subsequent to the latest date Execution Time or, if earlier, the dates as of which the Company and its subsidiaries have monthly financial statements, there was any decrease information is given in the capital stock, additional paid-in capital Disclosure Package (exclusive of any amendment 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, (IIsupplement thereof) 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 (exclusive of any supplement thereto), there shall not have been (i) any decrease or increase specified in the latest date as letter or letters referred to in paragraph (f) of which this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business (including the results of operations or management) or properties of the Company or Carnival plc and its their respective subsidiaries have monthly financial statementstaken as a whole, there was a consolidated net loss 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 (IIIii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with respect 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).
(h) Except as disclosed in the Disclosure Package, subsequent to the amounts Execution Time, (i) there shall not have been any downgrade in the credit ratings of net capital any of the Company’s or excess net capital of Carnival plc’s debt securities by ▇▇▇▇▇’▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ filed pursuant to Commission Rule 17a-5Companies, there has Inc. (“S&P”), and (ii) neither the Company nor Carnival plc shall have been any decrease in such amounts as compared placed under special surveillance, with the amounts shown in the most recent consolidated financial statements included in the Registration Statement and the Final Prospectus;negative implications, by Moody’s or S&P.
(Di) as of a specified date not more than three business days prior Prior to the date of the letterClosing Date, there was any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and its subsidiariesCarnival plc shall have furnished to the Underwriters such further information, certificates and documents as compared with the amounts shown in the most recent consolidated statement of financial condition Underwriters may reasonably request. If any of the Company and its subsidiaries included conditions specified in the Registration Statement and the Final Prospectus; except this Section 5 shall not have been fulfilled in all instances 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 increases the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the Closing Date by the Representatives and such letter, in which case the letter cancellation shall be awithout liability of any party to any other party, except to the extent provided in Sections 4 and 6. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Carnival PLC), Underwriting Agreement (Carnival PLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(i) The Canadian Final Prospectus shall have been filed with the OSC under the Shelf Procedures, (ii) the U.S. Final Prospectus shall have been filed with the SEC pursuant to General Instruction II.L. of Form F-10 under the Securities Act and (iii) the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company in accordance with Rule 433(d), shall have been filed with the SEC, in each case, within the applicable time period in the manner prescribed for such filing and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no cease trader order affecting the Securities and no other order preventing or suspending the use of any prospectus relating to ▇the Securities shall have been issued and no proceeding for any such purpose shall have been initiated or threatened by the SEC or the OSC.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & LLP, U.S. counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Underwriters, in the form set forth in Exhibit A.
(c) The Company shall have requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6& Harcourt LLP, Canadian counsel for the Company, 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of the Closing Date, Date and addressed 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) in the qualification of the Indenture under the Trust Indenture Act, which has been obtained.form set forth in Exhibit B.
(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.
(ed) The Representatives shall have received from Shearman & Sterling LLP, U.S. counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package and 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.
(fe) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its signed by the President or any Managing Director or a Vice President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Canadian Base Prospectus, the U.S. Base Prospectus, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the receipt obtained from the OSC in respect of the Canadian Base Prospectus remains in effect and no order having the effect of ceasing or suspending the effectiveness distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement has been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been instituted issued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any request for additional information by the OSC or the SEC have been complied with; and
(iii) since the date of the most recent audited financial statements included or incorporated by reference in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Registration Statement (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth or incorporated in or contemplated in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Registration Statement.
(xf) The Registration Statement does not contain any untrue statement receipt obtained from the OSC in respect of a material fact the Canadian Base Prospectus shall remain in effect and no order having the effect of ceasing or omit to state any material fact required to be stated therein suspending the distribution of 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, trading in the light securities of the circumstances under which they were made, not misleading, and (z) since Company nor any notice objecting the effective date use of the Canadian Base Prospectus or the Registration Statement there has not occurred shall have been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been issued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any event required to be set forth in an amended request for additional information by the OSC or supplemented prospectus which has not the SEC shall have been so set forth. 14complied with.
(g) At The Company shall have requested and caused Deloitte LLP, the independent chartered accountants of the Company to have furnished to the Representatives, at the Execution Time and at the Closing Date, a nationally recognized firm letters, (which may refer to letters previously delivered to one or more of independent public accountants shall have furnished to the Representatives a letterRepresentatives), dated respectively as of the day Execution Time and as of the Closing Date, confirming that they are independent auditors Date (with respect a “cut-off” date no more than two business days prior to the Company within the meaning date of the Securities Act and such letter), in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letter for each of the Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package.
(ih) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change or any development involving a prospective change in or affecting the condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries 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 Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the supporting schedulesDisclosure Package the effect of which, included 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 Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) 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 thereunderDisclosure Package.
(iii) On Subsequent to the basis Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization,” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a reading possible change in any such rating that does not indicate the direction of the unaudited consolidated financial statements 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 Company conditions specified in this Section 6 shall not have been fulfilled when and its subsidiariesas provided in this Agreement, or if any, included in the Registration Statement and the Final Prospectus and any of the latest unaudited consolidated financial statements made available 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 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 Shearman & Sterling LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards)▇▇▇▇▇▇▇▇ Court West, a reading of the minutes of the meetings of the directors of the Company and Suite 4405, ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇, ▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5, there has been any decrease in such amounts as compared with on 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 aClosing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Magna International Inc), Underwriting Agreement (Magna International Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates delivered pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed or mailed for filing with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇], counsel for the CompanyCompany and the Underwriters, dated the day of the Closing Date, to the effect thatof paragraphs (iii), (vi), (vii), (ix), (xi), (xiv), (xv), (xvi) and (xvii) below, and the opinion of [▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.], special counsel to the Company, dated the Closing Date, to the effect of paragraphs (i), (ii), (iv), (v), (viii), (x), (xii) and (xiii) below:
(i) The the Company has been is a duly organized incorporated and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus.;
(ii) The the Company has no subsidiaries and is not required to be qualified or licensed to do business as a foreign corporation in any jurisdiction;
(iii) the Securities and the Indenture conform in all material respects to the descriptions description thereof contained in the Final Prospectus.;
(iiiiv) The Indenture the Pooling Agreement has been duly authorized, executed and delivered by the Company, has ;
(v) the Securities have been duly qualified under authorized by the Trust Indenture Act Company;
(vi) upon due authorization, execution and constitutes delivery by the parties thereto, the Pooling Agreement will constitute a legal, valid and binding instrument agreement of the Company, enforceable against the Company in accordance with its terms; and the Securities have been duly authorized, executed and issued except as such enforceability may be limited 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 (A) bankruptcy, insolvency, fraudulent conveyanceliquidation, reorganizationreceivership, moratorium and moratorium, reorganization or other similar laws relating to or affecting creditors' the enforcement of the rights of creditors generally, and (B) general equitable principles (of equity, whether considered enforcement is sought in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing.;
(ivvii) No the Securities, when duly and validly executed, authenticated and delivered in accordance with the Pooling Agreement and paid for in accordance with this Agreement, will be entitled to the benefits of the Pooling Agreement;
(viii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(ix) the Registration Statement has become effective under the Act; to the best knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference 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 the Registration Statement or any amendment thereof at the time it became effective 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 amended or supplemented, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(x) this Agreement has been duly authorized, executed and delivered by the Company;
(xi) upon due authorization, execution and delivery by the parties hereto, this Agreement will constitute a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors generally, (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of any of the provisions of this Agreement which purport to provide indemnification from securities law liabilities;
(xii) 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 Agreementherein, 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, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xiii) neither the qualification issue and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default underunder the certificate of incorporation or by-laws of the Company or, to the best knowledge of such counsel, the terms of any material agreement, indenture or other agreement or instrument known to such counsel and to which the Company or its Named Subsidiary is a party or by which it 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 order or regulation known to such counsel to be applicable to the Company of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator 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.;
(viiixiv) The Registration Statement has become effective under the Securities Act, and, Pooling Agreement is not required 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 qualified under the Trust Indenture Act included of 1939, as amended;
(xv) neither the Company nor the Trust Fund is required to be registered under the Investment Company Act of 1940, as amended;
(xvi) the statements in the Final Prospectus under the headings "Certain Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute matters of State of New York or incorporated by reference therein) comply as federal law or legal conclusions with respect thereto, while not purporting to form discuss all possible consequences of investment in the Certificates, are correct in all material respects with respect to those consequences or matters that are discussed therein; and
(xvii) assuming compliance with the requirements provisions of the Securities Act Pooling Agreement, for federal income tax purposes, each of REMIC I and REMIC II [as such terms are defined in the Rules.
Pooling Agreement] will qualify as a REMIC within the meaning of Sections 860A through 860G (xthe "REMIC Provisions") If of 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 NYSECode, 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) _______________________ will be the Registration Statement"regular interests" in REMIC I, 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 ______________________ will be the sole class of a material fact or omits to state any material fact necessary "residual interests" in order to make REMIC I, (iii) the statements therein__________________________ will evidence "regular interests" in REMIC II and (iv) the __________ ____________ will be the sole class of "residual interests" in REMIC II, in each within the light meaning of the circumstances under which they were made, not misleading (except that no opinion need be expressed as to REMIC Provisions in effect on the financial statements or other financial or statistical data or the Form T-1 included or incorporated by reference therein)date hereof. 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 United States or the laws of the State of Delaware other than its general corporation law, to the extent deemed proper and specified in such opinion, upon opinions the opinion of local other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company 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.
(ec) [The Representatives shall have received from Underwriters' Counsel such opinion copies, addressed to them or opinionson which they are entitled to rely, dated of opinions of counsel furnished to the day rating agencies rating the Securities as set forth on Schedule I hereto addressing the characterization of the Closing Datetransfer by the Company to the Trustee of its right, title and interest in and to the mortgage loans underlying the Securities (the "Mortgage Loans") in accordance with the Pooling Agreement, and the sale of the Securities to the Underwriters hereunder, as a sale of the interests in the Mortgage Loan evidenced by the Securities rather than a financing or, alternatively, an opinion with respect to (i) the issuance Trustee's having as a perfected first priority security interest in the Mortgage Loans and sale (ii) the non-consolidation of the Securities, Company and ______________ in 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 event of enabling them to pass upon such mattersa conservatorship or receivership of ________________.]
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board or President and Chief Executive Officer, its Officer or an Executive Vice President or any Managing Director Treasurer and the principal financial or Vice President and its Chief Financial Officer or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect thatthat the signers of such certificate have carefully examined the Registration Statement (excluding any Current Reports and any other documents incorporated by reference therein), the Final Prospectus and this Agreement and that to the best of their knowledge after due inquiryknowledge:
(i) The 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, 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 no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and no proceedings for that purpose have been instituted or threatened; and
(iii) since the respective dates as of which information is given in the Final Prospectus, there has been no material adverse change in the condition (financial or other), 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 Final Prospectus.
(xe) The Registration Statement does not contain On the date hereof, ______________________ and/or 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 other firm of certified independent public accountants acceptable to the Representatives shall have furnished to the Representatives a letter, dated the day of the Closing Datedate hereof, 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, confirming that they are independent accountants within the consolidated financial statements meaning 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 respective applicable published rules and regulations thereunder.
(ii) On , and stating in effect that using the basis assumptions and methodology used by the Company, all of a reading of the unaudited consolidated financial statements of the Company which shall be described in such letter, they have recalculated such numbers and its subsidiaries, if any, included percentages set forth in the Registration Statement and the Final Prospectus as the Representatives may reasonably request and as are agreed to by ______________________, compared the results 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 their calculations to the date of the most recent audited consolidated financial statements included corresponding items in the Registration Statement and the Final Prospectus, nothing came and found each such number and percentage set forth in the Final Prospectus to their attention that caused them to believe that:
(A) any material modifications should be made in agreement with the results of such calculations. To the extent historical financial information with respect to the unaudited consolidated financial statements of the Company and its subsidiariesand/or historical financial, if any, delinquency or related information with respect to one or more servicers is included in the Registration Statement and the Final Prospectus, for them such letter or letters shall also relate to be such information.
(f) The Securities shall have received the rating or ratings from the rating agency or rating agencies set forth in conformity with generally accepted accounting principles; Schedule I hereto.
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates, opinions and such financial statements do documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not comply as to form have been fulfilled in all material respects with the applicable accounting requirements when and as provided in this Agreement, or if any of the Securities Act 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 published instructionsRepresentatives and their counsel, rules this Agreement and regulations thereunder.
(B) the unaudited capsule information all obligations of the Company and its subsidiariesUnderwriters hereunder may be canceled at, if anyor at any time prior to, included in the Registration Statement and Closing Date by the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements Representatives. Notice of such cancellation shall be given to the Company from which it was derived in writing or was not determined on a basis substantially consistent with that of the corresponding financial information by telephone or telegraph confirmed in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectuswriting.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 (Banc of America Commercial Mortgage Inc), Underwriting Agreement (Nationslink Funding Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("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 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 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 ▇▇▇▇▇▇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)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantors contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and the Guarantors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company and the Guarantors of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending or threatened by pursuant to Section 8A or Rule 401(g)(2) under the CommissionAct shall have been instituted or threatened. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Act.
(ixb) The Registration Statement▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, special counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, shall have furnished to the financial statements or other financial or statistical data or Underwriters its written opinion and negative assurance letter, each addressed to the Form T-1 Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form 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 RulesAnnex I hereto.
(xc) If ▇▇▇▇▇ Peabody LLP, counsel for the Securities are to be listed on the NYSEIssuers, 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 shall have furnished to the Securities with Underwriters its written opinion addressed to the NYSEUnderwriters, and such counsel has no reason to believe that dated 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 beClosing Date, 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 form 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 substance reasonably satisfactory to the Representatives for matters not governed by New York law and may rely as to matters Representatives, substantially in the form 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.Annex II hereto;
(ed) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Company’s Treasurer or any Managing Director or Vice President an executive officer of the Company with specific knowledge about the Company’s financial and its Chief Financial Officer or its Treasureroperational matters reasonably satisfactory to the Representatives, dated the day of the Closing Date, to the effect that the signer of such certificate has 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, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company each Issuer 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, 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 no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Act has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since February 28, 2017 there shall not have occurred any event that would have a Material Adverse Effect or threatenedany development that would reasonably be expected to have a Material Adverse Effect, 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).
(xf) The Registration Statement does not contain any untrue statement of a material fact or omit Company shall have requested and caused KPMG LLP to state any material fact required have furnished to be stated therein or necessary to make the statements therein not misleadingUnderwriters, (y) at 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, Execution Time 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 at the Closing Date, a nationally recognized firm letters (which may refer to letters previously delivered to one or more of independent public accountants shall have furnished to the Representatives a letterUnderwriters), dated respectively as of the day Execution Time and as of the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and in each case in form and substance satisfactory to the Representatives, stating Representatives containing statements and information of the type customarily included in effect that:
(i) In their opinion, accountants “comfort letters” to underwriters with respect to the consolidated financial statements of the Company and its subsidiaries, certain financial information contained or incorporated by reference in the Disclosure Package and the supporting schedulesFinal Prospectus.
(g) Subsequent to the Execution Time or, included if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus and audited by them comply as to form (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease beyond that reported in all material respects with the applicable accounting requirements paragraph 5(a) or 6 of the Securities Act and the Exchange Act and the related published rules and regulations thereunder.
letter or letters referred to in paragraph (f) of this Section 6 or (ii) On any change, or any development involving a prospective change, in or affecting the basis of a reading of the unaudited consolidated condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariesSubsidiaries taken as a whole, if any, included whether or not arising from transactions in the Registration Statement ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus and (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 latest unaudited consolidated financial statements made available Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale 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) 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 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.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(j) The Company shall have furnished to the Representatives, at the Execution Time, a certificate of the Company, signed by the Company’s general counsel, Treasurer or an executive officer of the Company with specific knowledge about the subject matter thereof, in form and substance reasonably satisfactory to the Representatives, and such certificate shall have been reaffirmed as of the Closing Date.
(k) 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 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 6 shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 (Constellation Brands, Inc.), Underwriting Agreement (Constellation Brands, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company and the Manager contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any material statements officer of the Company and the Manager made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Representatives or to shall have received (i) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Manager to the performance by effect set forth in Exhibit B-1 hereto; (ii) 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companyopinion, dated the day as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company to the effect that:
set forth in Exhibit B-2 hereto; and (iiii) The Company has been duly organized and is validly existing and in good standing under the laws opinion, dated as of the jurisdiction Closing Date, of its incorporation ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably satisfactory to the counsel for the Underwriters, together with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in signed or reproduced copies of such letters for each of the Final Prospectusother Underwriters.
(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.
(ec) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such 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 their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated signed by the day chief executive officer of the Closing DateCompany and the principal financial officer of the Company, on behalf of the Company 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the Registration Statement has become effective under the Act and 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 threatenedincorporated 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).
(xe) 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 Manager shall have furnished to the Representatives a lettercertificate signed by the chief executive officer, dated president or a senior managing director of the day Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager 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 Manager 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 (ii) the Manager has complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(ig) In their opinionAt the Execution Time and at the Closing Date, the consolidated Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such 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 relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including 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 amendment or supplement thereto), there shall not have been 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 subsidiariessubsidiaries taken as a whole, and the supporting schedules, included whether or not arising from transactions in the Registration Statement 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 is, in the sole judgment of the Representatives, so material and audited by them comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering or delivery of the Securities Act as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Exchange Act and the related published rules and regulations thereunderFinal Prospectus (exclusive of any amendment or supplement thereto).
(iii) On At the basis of Execution Time and at the Closing Date, the Representatives shall have received a reading of certificate signed by the unaudited consolidated financial statements Chief Financial Officer of the Company certifying as to the preparation, completeness and its subsidiariesaccuracy of certain financial and statistical data relating to the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(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.
(k) The FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(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) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the Registration Statement form of Exhibit A-1 and A-2 hereto, signed by each of the parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement.
(n) The Acquisition Agreements shall not have been terminated, and the Final Prospectus and Company shall not have actual knowledge of any event or condition having occurred that would give any party to the Acquisition Agreements the right to terminate any of the latest unaudited consolidated financial statements made available Acquisition Agreements, other than events and conditions that have been cured within any applicable cure period or that have been waived in writing. 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, letters 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 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 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 (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 Underwritten 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 Company and the Manager contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any material statements officer of the Company and the Manager made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Representatives or to shall have received (i) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Manager to the performance by effect set forth in Exhibit B-1 hereto; (ii) 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companyopinion, dated the day as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company to the effect that:
set forth in Exhibit B-2 hereto; and (iiii) The Company has been duly organized and is validly existing and in good standing under the laws opinion, dated as of the jurisdiction Closing Date, of its incorporation ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably satisfactory to the counsel for the Underwriters, together with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in signed or reproduced copies of such letters for each of the Final Prospectusother Underwriters.
(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.
(ec) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such 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 their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated signed by the day chief executive officer of the Closing DateCompany and the principal financial officer of the Company, on behalf of the Company 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the Registration Statement has become effective under the Act and 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 threatenedincorporated 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).
(xe) 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 Manager shall have furnished to the Representatives a lettercertificate signed by the chief executive officer, dated president or a senior managing director of the day Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager 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 Manager 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 (ii) the Manager 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.
(f) At the Execution Time and at the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(ig) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated 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 any change, or any development involving a prospective change, in or affecting the condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, and the supporting schedules, included whether or not arising from transactions in the Registration Statement 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 is, in the sole judgment of the Representatives, so material and audited by them comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering, sale or delivery of the Securities Act as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Exchange Act and the related published rules and regulations thereunderFinal Prospectus (exclusive of any amendment or supplement thereto).
(iih) On At the basis of Execution Time and at the Closing Date, the Representatives shall have received a reading of certificate signed by the unaudited consolidated financial statements Chief Financial Officer of the Company certifying as to the preparation, completeness and its subsidiariesaccuracy of certain financial and statistical data relating to the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(k) 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.
(l) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the Registration Statement form of Exhibit A-1 and the Final Prospectus and A-2 hereto, signed by each of the latest unaudited consolidated financial statements made available parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. 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, letters 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 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 (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 Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and Carnival plc contained herein (or the accuracy in all material respects with respect to any representation or warranty on the part of the Company and Carnival plc which has no materiality qualification) as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and Carnival plc made in any certificatescertificates pursuant to the provisions hereof, opinionsto the performance by each of the Company and Carnival plc of its obligations hereunder, affidavitsto the due execution and delivery of the Indenture, written statements to the absence of any event or letters condition which would give you the right to terminate this Agreement and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, 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, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the Closing Date, the Company shall have furnished to you the Representatives opinion of the General Counsel to the Company and Carnival plc, or an Associate or Deputy General Counsel to the Company and Carnival plc that practices in the area of corporate and securities law, dated the Closing Date, substantially in the form of Exhibit A hereto.
(c) At the Closing Date, the Company shall have furnished to you the opinion and statement of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and Carnival plc, each dated the Closing Date, substantially in the form of Exhibit B and C hereto, respectively, the opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ LLP, substantially in the form of Exhibit D hereto, and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 substantially in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction form 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 ProspectusExhibit E hereto.
(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 Underwriters shall have received from Sidley Austin LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto), any Issuer Free Writing Prospectus and other related matters as the Representatives may reasonably require, and the Company and Carnival plc shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company and Carnival plc shall have furnished to the Representatives Underwriters a certificate of its Chief Executive Officerthe Company and of Carnival plc, its signed by any two officers of the Company and Carnival plc, each of whom is a Vice President, Senior Vice President or any Managing Director or Executive Vice President of the Company and its Chief Financial Officer or its TreasurerCarnival plc, dated the day of the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments to any of the foregoing and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company and Carnival plc 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, Date and each of the Company and Carnival plc 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 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 or threatenedincorporated by reference in the Disclosure Package and the Final Prospectus, the Company has made all filings with the Commission and announcements, in either case required to be made by the Act or the Exchange Act.
(xf) 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 Underwriters shall have received from PricewaterhouseCoopers LLP, independent registered public accounting firm for the statements therein not misleading, (y) Company and Carnival plc at 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, Execution Time 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 at the Closing Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letterletters, dated as of the day Execution Time and as of the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent auditors with respect to the Company and Carnival plc 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 respective applicable published rules and regulations thereunder.
(ii) On the basis of a reading thereunder and containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited, unaudited consolidated and pro forma financial statements of the Company statements, as applicable, and its subsidiaries, if any, included certain financial information contained or incorporated by reference in the Registration Statement and Statement, the Final Preliminary 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.
(Cg) (I) as of Subsequent to the latest date Execution Time or, if earlier, the dates as of which the Company and its subsidiaries have monthly financial statements, there was any decrease information is given in the capital stock, additional paid-in capital Disclosure Package (exclusive of any amendment 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, (IIsupplement thereof) 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 (exclusive of any supplement thereto), there shall not have been (i) any decrease or increase specified in the latest date as letter or letters referred to in paragraph (f) of which this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business (including the results of operations or management) or properties of the Company or Carnival plc and its their respective subsidiaries have monthly financial statementstaken as a whole, there was a consolidated net loss 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 (IIIii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with respect 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).
(h) Except as disclosed in the Disclosure Package, subsequent to the amounts Execution Time, (i) there shall not have been any downgrade in the credit ratings of net capital any of the Company’s or excess net capital of Carnival plc’s debt securities by ▇▇▇▇▇’▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ filed pursuant to Commission Rule 17a-5Companies, there has Inc. (“S&P”), and (ii) neither the Company nor Carnival plc shall have been any decrease in such amounts as compared placed under special surveillance, with the amounts shown in the most recent consolidated financial statements included in the Registration Statement and the Final Prospectus;negative implications, by Moody’s or S&P.
(Di) as of a specified date not more than three business days prior Prior to the date of the letterClosing Date, there was any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and its subsidiariesCarnival plc shall have furnished to the Underwriters such further information, certificates and documents as compared with the amounts shown in the most recent consolidated statement of financial condition Underwriters may reasonably request. If any of the Company and its subsidiaries included conditions specified in the Registration Statement and the Final Prospectus; except this Section 5 shall not have been fulfilled in all instances 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 increases the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the Closing Date by the Representatives and such letter, in which case the letter cancellation shall be awithout liability of any party to any other party, except to the extent provided in Sections 4 and 6. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Carnival PLC), Underwriting Agreement (Carnival PLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Subsidiary Guarantors contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and the Subsidiary Guarantors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company and the Subsidiary Guarantors of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending pursuant to Rule 401(g)(2) or threatened by pursuant to Section 8A under the CommissionAct shall have been instituted or threatened.
(ixb) The Registration StatementCompany shall have requested and caused Winston & ▇▇▇▇▇▇ LLP, counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, to have furnished to the financial statements or other financial or statistical data or Representative their opinion, dated the Form T-1 of Closing Date and addressed to the Trustee under Underwriters, substantially in the Trust Indenture Act included or incorporated by reference therein) comply form attached as to form in all material respects with the requirements of the Securities Act and the RulesAnnex A hereto.
(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.
(xic) 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 Representative shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateUnderwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its the Company and any Subsidiary Guarantors, signed by the Chief Executive Officer, its the President or any Managing Director the principal executive officer and the principal financial or Vice President accounting officer of the Company and its Chief Financial Officer or its Treasurersuch Subsidiary Guarantor, dated the day of the Closing Date, to the effect that the signers of such certificate have 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, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company and each Subsidiary Guarantor 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, Date and the Company has and each Subsidiary Guarantor have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing 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 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 extending through the latest date Final Prospectus (exclusive of any supplement thereto); and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given to the Company of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any “nationally recognized statistical rating organization” as the term is defined for purposes of Section 3(a)(26) under the Exchange Act.
(e) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to the Representative), dated respectively as of which 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 Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and the Public Company Accounting Oversight Board and its subsidiaries have monthly financial statements, there was a consolidated net loss or (III) containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 and certain financial information contained or incorporated by reference in the Registration Statement Statement, the Disclosure Package and the Final Prospectus;
Prospectus (D) as of together with any supplement thereto), provided that the letter delivered on the Closing Date shall use a specified “cut-off” date not no more than three business days prior to the Closing Date. 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 was shall not have been (i) any change or decrease specified in the capital stock letter or additional paid-letters referred to in capitalparagraph (f) of this Section 7 or (ii) any change, or increase any development involving a prospective change, in long-term indebtedness or affecting the condition (financial or otherwise), business or results of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition operations of the Company and its subsidiaries included 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 Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus; except 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 Notes by either Standard & Poor’s Financial Services LLC, a subsidiary of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or ▇▇▇▇▇’▇ Investors Services, Inc. or any of their respective successors or any notice given to the Company 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 and each Subsidiary Guarantor shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. 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 Representative and counsel for the Underwriters, this Agreement and all instances for increases obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the Closing Date by the Representative. Notice of such letter, in which case the letter cancellation shall be agiven 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 Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Lear Corp), Underwriting Agreement (Lear Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company and the Manager contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any material statements officer of the Company and the Manager made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Representatives or to shall have received (i) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Manager to the performance by effect set forth in Exhibit B-1 hereto; (ii) 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companyopinion, dated the day as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company to the effect that:
set forth in Exhibit B-2 hereto; and (iiii) The Company has been duly organized and is validly existing and in good standing under the laws opinion, dated as of the jurisdiction Closing Date, of its incorporation ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably satisfactory to the counsel for the Underwriters, together with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in signed or reproduced copies of such letters for each of the Final Prospectusother Underwriters.
(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.
(ec) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such 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 their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated signed by the day chief executive officer of the Closing DateCompany and the principal financial officer of the Company, on behalf of the Company 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the Registration Statement has become effective under the Act and 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 threatenedincorporated 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).
(xe) 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 Manager shall have furnished to the Representatives a lettercertificate signed by the chief executive officer, dated president or a senior managing director of the day Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager 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 Manager 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 (ii) the Manager has complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(ig) In their opinionAt the Execution Time and at the Closing Date, the consolidated Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such 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 relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including 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 amendment or supplement thereto), there shall not have been 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 subsidiariessubsidiaries taken as a whole, and the supporting schedules, included whether or not arising from transactions in the Registration Statement 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 is, in the sole judgment of the Representatives, so material and audited by them comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering or delivery of the Securities Act as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Exchange Act and the related published rules and regulations thereunderFinal Prospectus (exclusive of any amendment or supplement thereto).
(iii) On At the basis of Closing Date, the Representatives shall have received a reading of certificate signed by the unaudited consolidated financial statements Principal Accounting Officer of the Company certifying as to the preparation, completeness and its subsidiariesaccuracy of certain financial and statistical data relating to the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(j) At the Closing Date, the Representatives shall have received a certificate signed by the Principal Accounting Officer of the Manager certifying as to the preparation, completeness and accuracy of certain financial and statistical data relating to Blackstone included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(k) 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.
(l) The FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(m) 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.
(n) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the Registration Statement form of Exhibit A-1 and the Final Prospectus and A-2 hereto, signed by each of the latest unaudited consolidated financial statements made available parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. 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, letters 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 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 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 (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 Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuers contained herein as of the date hereof Applicable Time and the Closing Date, to the accuracy of any material the statements of the Company or the Guarantors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives provisions hereof, to the performance by the Issuers 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); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company and Guarantors 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) The Company shall have requested and caused Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Guarantors, to the performance by the Company of its respective obligations hereunder and have furnished to the following additional conditions:
(a) The Final Prospectus shall have been filed with Representatives its opinion, dated the Commission pursuant Closing Date and addressed 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 , in substantially the effectiveness form 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 RepresentativesExhibit A hereto.
(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 requested and caused GableGotwals, counsel for the Company and the Guarantors, to have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companyits opinion, dated the day of the Closing Date, Date and addressed to the effect that:
(i) The Company has been duly organized and is validly existing and Representatives, in good standing under substantially the laws form 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 ProspectusExhibit B hereto.
(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.
(ed) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the 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.
(fe) The Company and the Guarantors shall have each furnished to the Representatives a certificate of its the Company and the Guarantor, as the case may be, signed by their respective Chief Executive Officer, its President or any Managing Director or a Vice President and its the Chief Financial Officer or its TreasurerOfficer, dated the day of the Closing Date, to the effect that the signers of such certificate have reviewed the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company Issuers in Section 1 of 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, Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date.;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the Company’s or the Guarantors’ knowledge, threatened.; and
(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 (ziii) 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 Disclosure Package and the Final Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus.
(f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Applicable Time and at the Closing Date, “comfort letters” (which may refer to letters previously delivered to the Representatives), dated respectively as of the Applicable Time and as of the Closing Date, in form and substance satisfactory to the Representatives and PricewaterhouseCoopers LLP, with respect to the certain unaudited financial statements and financial information contained in the Registration Statement, the Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus.
(g) Subsequent to the Applicable 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 and extending through the latest date as (exclusive of which the Company and its subsidiaries have monthly financial statementsany amendment thereto), there was a consolidated net loss shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (IIIii) with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 capitaladverse change, or increase any development involving a prospective adverse change, in long-term indebtedness or affecting the business, properties, earnings, results of operations or financial condition of the Company and its subsidiaries, taken as compared a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the amounts shown in the most recent consolidated statement offering or delivery of financial condition any series of the Company and its subsidiaries included in Securities as contemplated by the Registration Statement Statement, the Disclosure Package and the Final Prospectus; except .
(h) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s or the Guarantors’ debt securities by any “nationally recognized statistical rating organization” (as defined in 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.
(i) Prior to the Closing Date, the Company and the Guarantors 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 instances for increases obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the Closing Date by the Representatives. Notice of such letter, in which case the letter cancellation shall be agiven to the Company in writing or by telephone, email or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date, or as otherwise agreed by the Company and the Representatives.
Appears in 2 contracts
Sources: Underwriting Agreement (Oneok Inc /New/), Underwriting Agreement (Oneok Inc /New/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3, hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus shall Prospectus, and any supplement thereto, 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 manner and within 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 time period required 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 termsRule 424(b); 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending shall have been instituted or threatened by the Commissionthreatened.
(ixb) The Registration StatementCompany shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ London LLP, counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, to have furnished to the financial statements or other financial or statistical data or Underwriters its opinions dated the Form T-1 of Closing Date and any settlement date, as applicable, and addressed to the Trustee under Underwriters, in a form reasonably acceptable to 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 RulesUnderwriters.
(xc) If The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Securities are Company, 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 have furnished to the Securities with Underwriters its opinions dated the NYSEClosing Date and any settlement date, as applicable, and such counsel has no reason addressed to believe that the Securities will not be authorized for listingUnderwriters, subject in a form reasonably acceptable to official notice of issuance and evidence of satisfactory distributionthe Underwriters.
(xid) 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 Underwriters shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and any settlement date, as applicable, and addressed to the Closing DateUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters 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.
(fe) The Company shall have furnished to the Representatives Underwriters a certificate of its the Company, signed by the Chief Executive Officer, its President Officer and the principal financial or any Managing Director or Vice President and its Chief Financial Officer or its Treasureraccounting officer of the Company, dated the day of the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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 such date with the same effect as if made on the Closing Date, such 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.such date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 Statutory Prospectus 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 Statutory Prospectus and extending through the latest date as Prospectus (exclusive of which the any supplement thereto).
(f) The Company shall have requested 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 caused ▇▇▇▇▇▇ determined to have furnished to the Underwriters, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Underwriters.
(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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects 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 Underwriters, 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) Prior to the Closing Date and any settlement date, as applicable, the Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Global Market, satisfactory evidence of which shall have been provided to the Underwriters.
(k) On the Effective Date, the Company shall have delivered to the Underwriters executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriters pursuant to Commission Rule 15c3-1 Section 5(hh) hereof shall have been issued as of the Closing Date, and shown 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 most recent financial statement opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriters 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 Underwriters. 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 and, if applicable, the last sentence of Section 3 shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5& ▇▇▇▇ (UK) LLP, there has been any decrease in such amounts as compared with counsel for the amounts shown in Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the most recent consolidated financial statements included in Closing Date or 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 subsidiariesapplicable settlement date, 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 aapplicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Target Global Acquisition I Corp.), Underwriting Agreement (Target Global Acquisition I Corp.)
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the several Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Company, Thermedics and Thermo Electron contained herein as of the date hereof Execution Time and the applicable Closing Date, to the accuracy of any material the statements of the Company, Thermedics and Thermo Electron made in any certificatescertificates pursuant to the provisions hereof, opinionsto the performance by the Company, affidavitsThermedics and Thermo Electron of their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, written unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than 12:00 Noon, Eastern time, on ______ __, 1997; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) No Underwriter shall have been advised by the Company, Thermedics or Thermo Electron or shall have discovered and disclosed to the Company that the Registration Statement, or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in your reasonable opinion, or in the reasonable opinion of counsel for the Underwriters, is material, or omits to state a fact which, in your reasonable opinion, or in the reasonable opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements or letters therein not misleading.
(c) At the Execution Time and at the applicable Closing Date, the Company and Thermo Electron shall have furnished to you the Representatives or opinions (addressed to the Underwriters) of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, Esq., General Counsel to the Company, Thermedics and Thermo Electron, dated respectively as of the Execution Time and the applicable Closing Date, in the form previously provided to you.
(d) At the Execution Time and at the applicable Closing Date, the Representatives shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant ▇▇, LLP, counsel 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 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 as of the Execution Time and the applicable Closing Date, with respect to the issuance and sale of the Securities, 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.
(fe) The At the applicable Closing Date, the Company shall have furnished to the Representatives a certificate certificates of its Chief Executive Officerthe Company, its dated as of the applicable Closing Date and signed by the President or any Managing Director or a Vice President and its Chief Financial Officer by the Treasurer or its Treasurer, dated the day Secretary of the Closing DateCompany given in their capacities as such, to the effect that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the applicable Closing Date Date, with the same effect as if made on the applicable 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 applicable Closing Date.;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to their knowledge, threatened.;
(xiii) The all filings required by Rule 424 and Rule 430A have been made;
(iv) the signers of said certificate have carefully examined the Registration Statement does and the Prospectus, and any amendments or supplements thereto and such documents contain all statements and information required to be included therein, and do not contain include 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
(v) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth.
(yf) At the applicable Closing Date, each of Thermedics and Thermo Electron shall have furnished to the Representatives certificates of Thermedics and Thermo Electron, dated respectively as of the applicable Closing Date and signed by the President or a Vice President and the Treasurer or Secretary thereof given in their capacities as such, to the effect that:
(i) the Final Prospectus does representations and warranties of Thermedics or ThermoTrex (as applicable) in this Agreement are true and correct at and as of the applicable Closing Date with the same effect as if made on the applicable Closing Date, and each of Thermo Electron or Thermedics (as applicable) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(ii) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments or supplements thereto, and such documents contain all statements and information required to be included therein and do not contain include any untrue statement of a material fact or omit to state a any 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, therein not misleading, and ; and
(ziii) since the effective date of the Registration Statement Statement, there has not occurred any no event required to be set forth in an amended amendment or supplemented prospectus supplement to the Registration Statement or the Prospectus which has not been so set forth. 14.
(g) At the Execution Time and at the applicable Closing Date, a nationally recognized each accounting firm of independent public accountants whose report appears in the Prospectus shall have furnished to the Representatives a letterletters, dated the day respectively as of the Execution Time and the applicable 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, confirming that they are independent accountants within the consolidated financial statements meaning 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 applicable published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated financial statements of the Company thereunder 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 subsidiariesstating, as to transactions and events subsequent to of the date of such letter (or, with respect to matters involving changes or developments since 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 respective dates as of which the Company and its subsidiaries have monthly specified financial statements, there was any decrease information is given 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 five days prior to the date of each such letter), the conclusions and findings of each such firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the execution of this Agreement, and with respect to each letter delivered on a Closing Date confirming the conclusions and findings set forth in such prior letter.
(h) Subsequent to the Execution Time or, there was any decrease if earlier, the dates as of which information is given in the capital stock Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), neither the Company nor any of the Subsidiaries of the Company shall have sustained loss by fire, flood, accident or additional paid-in capitalother calamity, or increase shall have become a party to or the subject of any litigation, which is material to the Company and its Subsidiaries taken as a whole, nor shall there have been a material adverse change in long-term indebtedness the general affairs, operations, business, prospects, key personnel, capitalization, financial condition or net worth of the Company and its subsidiariesSubsidiaries taken as a whole, as compared whether or not arising in the ordinary course of business, which loss, litigation or change, in your judgment, shall render it inadvisable to proceed with the amounts shown in the most recent consolidated statement of financial condition payment for and delivery of the Securities.
(i) Prior to the applicable Closing Date, the Company shall have furnished to the Representatives such further information, certificates and its subsidiaries included documents as the Representatives may reasonably request.
(j) The Securities to be purchased on such Closing Date by the Underwriters shall be approved for listing on the American Stock Exchange, subject only to official notice of issuance.
(k) At the Execution Time, the Company shall have furnished or caused to be furnished to the Representatives such lock-up agreements as are requested by the Representatives. If any of the conditions specified in the Registration Statement and the Final Prospectus; except this Section 6 shall not have been fulfilled in all instances 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 reasonably satisfactory in form and substance to the Representatives and counsel for increases the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the applicable Closing Date by the Representatives. Any such letter, in which case the letter cancellation shall be awithout liability of the Underwriters to the Company, Thermedics or Thermo Electron. 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: Standby Underwriting Agreement (Thermedics Detection Inc), Standby Underwriting Agreement (Thermedics Detection Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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 (IIIii) with respect to for the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 aperiod
Appears in 2 contracts
Sources: Underwriting Agreement (Bank of America Corp /De/), Underwriting Agreement (Bank of America Corp /De/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Units described in Sections 2(a) and 2(b) hereof shall be subject to (i) the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time, the Closing Date and (in the case of any Units delivered after the Closing Date, any settlement date pursuant to Section 3(b) hereof), (ii) the accuracy of any material the statements of the Company made in any certificatescertificates delivered pursuant to the provisions hereof, opinions(iii) the performance by the Company of its obligations hereunder, affidavitsand (iv) the following additional conditions:
(a) The Registration Statement shall have become effective (or, written statements if a post- effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or letters at such later date and time as the Representative may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been initiated or, to the best knowledge of the Company, threatened by the Commission.
(b) The Company shall have furnished to the Representatives or to Representative the opinion of ▇▇▇▇, Dill, Carr, ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("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 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 the opinion of a Deputy General Counsel or the Chief Legal Officer counsel for the Company, addressed to the Underwriters and dated the day of Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Closing Date, Representative 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, ; any required filing of the Prospectus or 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 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 qualification in 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 jurisdiction 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 request from 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 Commission for additional information 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 complied with; the Registration Statement and the Final Prospectus (and audited by them any supplements thereto) 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.
thereunder (ii) On except that such counsel need express no opinion with respect to the basis of a reading of the unaudited consolidated financial statements of the Company Financial Statements and its subsidiaries, if any, schedules 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 standardsProspectus), 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 (Starlight Entertainment Inc), Underwriting Agreement (Starlight Entertainment Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 For 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 period from and after effectiveness of this Agreement or such later date and time as shall be consented prior to in writing by the Representatives.Closing Date:
(bi) No no stop order suspending the effectiveness of the Registration Statement, as amended from time or any post-effective amendment to time, or suspending the qualification of the IndentureRegistration Statement, shall be in effect and no proceedings for such purpose shall be pending before have been instituted or threatened by the Commission Commission;
(ii) the Company shall have filed the preliminary prospectus and any requests for additional information on the part of Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to be included in the Registration Statement or containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Prospectus or otherwiseTerm Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been complied filed with the Commission within the applicable time periods prescribed for such filings under such rule or, to the reasonable satisfaction extent applicable, under Rule 164(b) under the Securities Act; and
(iv) FINRA shall have raised no objection to the fairness and reasonableness of the Representativesunderwriting terms and arrangements.
(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.
(db) The Company shall have furnished to the Representatives Representative the opinion of a Deputy General Counsel or the Chief Legal Officer McGuireWoods LLP, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Disclosure Package and the Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Indenture Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned beneficially, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company or any of its subsidiaries required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Final Disclosure Package and the Prospectus.;
(iiivi) The Indenture the Registration Statement has been declared effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and, has been duly qualified under the Trust Indenture Act assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding instrument agreement of the Company 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 applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, reorganization, moratorium and conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (whether considered in a proceeding in equity or at lawany successor statute) and by an implied covenant any bank regulatory powers now or hereafter in effect and to the application of good faith and fair dealing.principles of public policy;
(ivviii) No no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 sky, state securities, insurance or similar laws of any jurisdiction the United States in connection with the purchase and distribution of the Securities Depositary Shares by the UnderwritersUnderwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and (2) the qualification due execution of the Indenture under Deposit Agreement and the Trust Indenture ActDepositary Receipts by the Depository, which has been obtained.
(v) Such counsel does not know of any contracts or other documents which are will be entitled to the rights under, and the benefits of, the Deposit Agreement; and all corporate action required to be filed as exhibits to taken for the Registration Statement authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Securities Act Deposit Agreement nor the fulfillment of the terms hereof 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 thereof 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 a breach of, or constitute a default underunder (1) the Company’s Amended and Restated Certificate of Incorporation or the Bylaws, as amended to date, (2) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (3) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its Named Subsidiary terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any of their respective properties, the successor statute) and any bank regulatory powers now or hereafter in effect of which would be material and to the Company and its subsidiaries taken as a whole.application of principles of public policy; and
(viiixiii) The Registration Statement has become effective under the Securities Act, and, such counsel is without knowledge of any rights to the best registration of securities of the knowledge of such counsel, no stop order suspending the effectiveness of Company under the Registration Statement has which have not been issued and no proceeding for that purpose is pending or threatened waived by the Commission.
(ix) The holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of 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 distributionDisclosure Package, or the Company Prospectus consisting of financial statements and other financial, accounting and statistical information and it has filed a preliminary listing application and all required supporting documents with respect to the Securities with the NYSEnot independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and Statement, the Final Disclosure Package, or the Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration StatementStatement or any amendment thereto as of the time it became effective, as of its effective datethe Initial Sale Time or as of the date of such opinion, 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) that, subject to the Final Prospectus contains foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omits omitted to state any a material fact necessary in order to make the statements statement therein, in the light of the circumstances under which they were made, not misleading (except misleading, or that no the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need be expressed as not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the financial statements or other financial or statistical data or the Form T-1 included or incorporated by reference therein)Depositary Shares. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Final Disclosure Package and the Prospectus and any other related matters as the Representatives 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its Chief Executive Officerthe Company, its signed by any Senior Vice President or Treasurer or any Managing Director or Vice President and its Chief Financial Officer or its Treasurerother authorized officer of the Company, dated the day of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission;
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), 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; and
(iv) any litigation or proceeding shall be pending to restrain or enjoin the issuance or delivery of the Shares, or which in any way affects the validity of the Shares.
(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
(ge) At the Closing Datetime this Agreement is executed, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives Representative a letterletter or letters (which may refer to letters previously delivered to one or more of the Representative), dated the day as of the Closing Datedate of this Agreement, in form and substance satisfactory to the Representative, confirming that they the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent auditors registered public accounting firm with respect to the Company within the meaning of under the Securities Act and in form the applicable rules and substance satisfactory to regulations thereunder adopted by the Representatives, stating in effect that:Commission and the Public Company Accounting Oversight Board (United States).
(iii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference in the Registration Statement Statement, the preliminary prospectus and the Final Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of under the Securities Act and the Exchange Act and the related published rules and regulations thereunderadopted by the Commission.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇, and inquiries the boards of certain officials directors of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the Company and its subsidiaries, Principal Subsidiary Bank 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 minute books 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 five 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 delivery 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 ;
(b) Performing the letter shall be aprocedures specified by the American Institute of Certified
Appears in 2 contracts
Sources: Underwriting Agreement (Bank of America Corp /De/), Underwriting Agreement (Bank of America Corp /De/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company and the Manager contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any material statements officer of the Company and the Manager made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Representatives or to shall have received (i) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Manager, to the performance by effect set forth in Exhibit B-1 hereto; (ii) 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytax opinion, dated the day as 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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 counsel 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 Manager, to the Trusteeeffect set forth in Exhibit B-2 hereto; (iii) the negative assurance letter, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and the Manager, to the effect set forth in Exhibit B-3 hereto and (iv) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company, to the effect set forth in Exhibit B-4 hereto, each in form and substance reasonably satisfactory to the counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters.
(ec) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such 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 their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated signed by the day chief executive officer of the Closing DateCompany and the principal financial officer of the Company, on behalf of the Company 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the Registration Statement has become effective under the Act and 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 threatenedincorporated 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).
(xe) 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 Manager shall have furnished to the Representatives a lettercertificate signed by the chief executive officer, dated president or a senior managing director of the day Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager 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 Manager 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 (ii) the Manager 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.
(f) At the Execution Time and at the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(ig) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated 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 any change, or any development involving a prospective change, in or affecting the condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, and the supporting schedules, included whether or not arising from transactions in the Registration Statement 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 is, in the sole judgment of the Representatives, so material and audited by them comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering, sale or delivery of the Securities Act as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Exchange Act and the related published rules and regulations thereunderFinal Prospectus (exclusive of any amendment or supplement thereto).
(iih) On At the basis of Execution Time and at the Closing Date, the Representatives shall have received a reading of certificate signed by the unaudited consolidated financial statements Chief Financial Officer of the Company certifying as to the preparation, completeness and its subsidiariesaccuracy of certain financial and statistical data relating to the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(k) 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.
(l) Subsequent to the Execution Time, there shall not have been any downgrading of more than two credit rating levels (for the avoidance of doubt, the Company shall maintain a credit rating of at least B1 and B- from ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Services (“S&P”), respectively) in the Registration Statement and the Final Prospectus and rating of any of the latest unaudited consolidated financial statements made available Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential downgrading in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(m) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the form of Exhibit A-1 and A-2 hereto, signed by each of the parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. 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, letters 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 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 (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 Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that 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 instituted or threatened; and any Final Prospectus shall have been filed or mailed for filing with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer White & Case LLP, counsel for the Company, dated the day Closing Date substantially in the form attached hereto as Exhibit A.
(c) The Company shall have furnished to the Representatives the opinion of White & Case LLP, counsel for the Company, dated the Closing Date, as 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 Prospectuscertain intellectual property matters.
(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.
(ed) The Representatives shall have received from counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesInitial 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 such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the President and Chief Executive Officer, its President Officer or any Managing Director or a Senior Vice President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect thatthat 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 after due inquiryknowledge:
(i) The 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, 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 no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and no proceedings for that purpose have been instituted or threatened.; and
(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 (ziii) 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 Final Prospectus, there has been no material adverse change in the Final Prospectus and extending through the latest date as condition (financial or other), earnings, business or properties of which the Company and its subsidiaries 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 monthly financial statements, there was a consolidated net loss or (III) with respect furnished to the amounts Representatives a letter or letters (which may refer to letters previously delivered to one or more of net capital or excess net capital the Representatives), dated as of ▇▇▇▇▇▇ determined pursuant the Closing Date, in form and substance satisfactory to Commission Rule 15c3-1 and shown in the most recent financial statement Representatives.
(g) Subsequent to the respective dates as of ▇▇▇▇▇▇ 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 which information is given 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 shall not have been (i) any change or decrease specified in the capital stock letter or additional paid-letters referred to in capitalparagraph (f) of this Section 6 or (ii) any change, or increase any development involving a prospective change, in long-term indebtedness of or affecting the Company and its subsidiariesearnings, as compared with the amounts shown in the most recent consolidated statement of financial condition business or properties of the Company and its subsidiaries included the effect 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; except .
(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 instances for increases material respects when and as provided in this Agreement, or decreases set forth 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 letter, in which case the letter cancellation shall be agiven 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)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificatescertificates pursuant to the provisions hereof, opinionsto the performance by the Company of its obligations hereunder and to the following additional conditions:
(i) The Canadian Final Prospectus shall have been filed with the OSC under the Shelf Procedures, affidavits(ii) the U.S. Final Prospectus shall have been filed with the SEC pursuant to General Instruction II.L. of Form F-10 under the Securities Act and (iii) the final term sheet contemplated by Section 5(b) hereto, written statements and any other material required to be filed by the Company in accordance with Rule 433(d), shall have been filed with the SEC, in each case, within the applicable time period in the manner prescribed for such filing and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or letters any part thereof shall have been issued and no cease trade order affecting the Securities and no other order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for any such purpose shall have been initiated or threatened by the SEC or the OSC.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives or their opinion, dated the Closing Date and addressed to the Underwriters, in the form set forth in Exhibit A.
(c) The Company shall have requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Underwriters, in the form set forth in Exhibit B.
(d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6US LLP, 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 U.S. counsel 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 Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package and 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.
(fe) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its signed by the President or any Managing Director or a Vice President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Canadian Base Prospectus, the U.S. Base Prospectus, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the receipt obtained from the OSC in respect of the Canadian Base Prospectus remains in effect and no order having the effect of ceasing or suspending the effectiveness distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement has been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been instituted issued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any request for additional information by the OSC or the SEC have been complied with; and
(iii) since the date of the most recent audited financial statements included or incorporated by reference in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Registration Statement (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth or incorporated in or contemplated in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Registration Statement.
(xf) The Registration Statement does not contain any untrue statement receipt obtained from the OSC in respect of a material fact the Canadian Base Prospectus shall remain in effect and no order having the effect of ceasing or omit to state any material fact required to be stated therein suspending the distribution of 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, trading in the light securities of the circumstances under which they were made, not misleading, and (z) since Company nor any notice objecting the effective date use of the Canadian Base Prospectus or the Registration Statement there has not occurred shall have been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been issued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any event required to be set forth in an amended request for additional information by the OSC or supplemented prospectus which has not the SEC shall have been so set forth. 14complied with.
(g) At The Company shall have requested and caused Deloitte LLP, the independent chartered professional accountants of the Company to have furnished to the Representatives, at the Execution Time and at the Closing Date, a nationally recognized firm letters, (which may refer to letters previously delivered to one or more of independent public accountants shall have furnished to the Representatives a letterRepresentatives), dated respectively as of the day Execution Time and as of the Closing Date, confirming that they are independent auditors Date (with respect a “cut-off” date no more than two Business Days prior to the Company within the meaning date of the Securities Act and such letter), in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letter for each of the Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package.
(ih) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change or any development involving a prospective change in or affecting the condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries 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 Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the supporting schedulesDisclosure Package the effect of which, included 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 Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) 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 thereunderDisclosure Package.
(iii) On Subsequent to the basis Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization,” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a reading possible change in any such rating that does not indicate the direction of the unaudited consolidated financial statements 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 Company conditions specified in this Section shall not have been fulfilled when and its subsidiariesas provided in this Agreement, or if any, included in the Registration Statement and the Final Prospectus and any of the latest unaudited consolidated financial statements made available 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 in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇, ▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5, there has been any decrease in such amounts as compared with on 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 aClosing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Magna International Inc), Underwriting Agreement (Magna International Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Applicable Time of Sale, the Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus 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 pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice by the Commission objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(cb) Since ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the respective dates as of which information is given in the Registration Statement and the Final ProspectusCompany, 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 Companyits opinion, dated the day of Closing Date and addressed to the Closing DateRepresentatives, to the effect that:
(i) The the Company has been duly organized and is validly existing and in good standing subsisting as a limited liability company under the laws of the jurisdiction Commonwealth of its incorporation Pennsylvania, with all requisite corporate full limited liability company power and authority under its operating agreement to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Disclosure Package and the Final Prospectus.;
(ii) The Securities Exelon is the only member of the Company and owns all of the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus.Company’s outstanding limited liability company interests;
(iii) The the Indenture has been duly authorized, executed is in due and delivered by the Companyproper form, 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 validly authorized by the Company, necessary corporate action 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 has 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 qualified under the Trust Indenture Act, which and no other authorization, approval, consent, certificate or order of any state commission or regulatory authority or of any other federal commission or regulatory authority is required in respect of the execution and delivery of the Indenture; the Indenture has been obtained.duly and validly executed and delivered and is a valid and enforceable instrument in accordance with its terms except as the enforceability thereof may be limited by (1) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating or affecting the creditors’ rights, and (2) general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing;
(iv) the Securities are in due and proper form and have been duly executed and delivered by the duly authorized officers of the Company; 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 the necessary corporate action, no authorization, approval, consent, certificate or order of any state commission or regulatory authority or of any federal commission or regulatory authority having been required in respect of such issue and sale except for the authorization of FERC, which authorization has been received by the Company and is in full force and effect; the Securities, when duly executed, authenticated and delivered to the Underwriters against payment of the agreed consideration therefor, will be valid and enforceable obligations of the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing;
(v) Such such counsel does is not know 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 and, to the knowledge of such counsel, there are no pending legal proceedings to which the Company or any contracts or other documents subsidiary is a party and which are required to be filed as exhibits to set forth in the documents incorporated by reference in the Registration Statement by Statement, Disclosure Package and Final Prospectus other than those referred to in such documents; and the Securities Act or by statements in any Preliminary Prospectus, the Rules which have not been filed as exhibits to Disclosure Package and the Registration Statement or incorporated Final Prospectus under the heading “Description of Senior Notes” fairly summarizes the matters therein by reference as permitted by the Rules.described;
(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; any required filing of the Base Prospectus, andany Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the best of 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 and issued, no proceeding proceedings for that purpose is pending have been instituted or threatened by threatened, and the Commission.
(ix) The Registration Statement, Statement and the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to other than the financial statements or and other financial or statistical data or the Form T-1 of the Trustee under the Trust Indenture Act included or incorporated by reference 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 Securities Act, the Exchange Act and the Rules.
(x) If Trust Indenture Act and 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, respective rules thereunder; and such counsel has no reason to believe that on the Effective Date and as of the “new effective date” with respect to the Securities will not be authorized for listingpursuant to, subject to official notice of issuance and evidence of satisfactory distribution.
(xiwithin the meaning of, Rule 430B(f)(2) 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 corporationAct, 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) that the Final Prospectus contains 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 information contained therein, as to which such counsel need express no opinion);
(vii) such counsel has no reason to believe that the Disclosure Package, as of the Applicable Time of Sale, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion need be expressed as to other than the financial statements or and other financial or statistical data or the Form T-1 included or incorporated by reference information contained therein). In rendering such opinion, as to which such counsel may rely upon opinions of local counsel satisfactory 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 Representatives for matters not governed by New York law offering and may rely as to matters of fact, to the extent he deems proper, upon certificates or affidavits of officers sale of the CompanySecurities 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) no 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 herein or in the Indenture, except such as have been obtained under the Act, the Trustee Trust Indenture Act and public officials. Such counsel such as may rely on a certificate be required under the blue sky or securities laws of any jurisdiction in connection with the Trustee with respect to the execution purchase and sale of the Securities by the Company Underwriters in the manner contemplated in this Agreement and the authentication Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(xi) neither the execution and delivery of this Agreement or the Indenture, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof or thereof will contravene, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Company pursuant to (i) the operating agreement of the Company or the charter, bylaws or other organizational instrument or document of the Company’s subsidiaries, as the case may be; (ii) 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 is a party or bound or to which its property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the fiscal year ended December 31, 2016 and Forms 8-K filed with the Commission during the period between January 1, 2017 and the Closing Date; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties;
(xii) 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;
(xiii) No restraining or other order has been issued by and no investigation, proceeding or litigation has been commenced or, to the Trusteebest of such counsel’s knowledge, threatened before the Commission or any other governmental or regulatory agency with respect to the execution, delivery, performance, making or consummation, as the case may be, of the issuance and sale of the Securities.
(exiv) The documents incorporated by reference in the Disclosure Package and the Final Prospectus (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when such documents were so filed, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statement therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading.
(c) The Representatives shall have received from Winston & ▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, 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.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its signed by the President or any Managing Director Executive or Senior Vice President of the Company and its by the Chief Financial Officer or its Treasurer, dated the day Chief Accounting Officer of the Closing Date, Company to the effect that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on correct, as if made at 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 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 or, to the Company’s knowledge, threatened.; and
(xiii) The Registration Statement does the signers of such certificate have carefully examined the Disclosure Package and the Final Prospectus, and any amendments or supplements thereto (including any documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Final Prospectus, and, in their opinion, the Disclosure Package, as of the Applicable Time, and the Final Prospectus, as of its date, did not contain and, on the Close Date, do not include 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 ; and
(ziv) 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 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);
(e) 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 satisfactory to the Representatives.
(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), the Disclosure Package and the Final Prospectus and extending through the latest date as (exclusive of which the Company and its subsidiaries have monthly financial statementsany amendment or supplement thereto), there was a consolidated net loss 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 (IIIii) with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 capitalchange, or increase any development involving a prospective change, in long-term indebtedness or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as compared 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 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 amounts shown in the most recent consolidated statement of financial condition offering or delivery of the Company and its subsidiaries included in Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus; except Prospectus (exclusive of any amendment or supplement thereto).
(g) On the Closing Date, (i) the Securities shall be rated at least “Baa2” by ▇▇▇▇▇’▇ Investors Service, Inc., “BBB” by Standard & Poor’s Ratings Services and “BBB” by Fitch, Inc., respectively, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Securities have such ratings, and (ii) since the Execution Time, 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 “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company’s other debt securities.
(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 6 shall not have been fulfilled in all instances 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 increases the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or decreases set forth in such letter, in which case the letter shall be a
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending shall have been instituted or threatened by the Commissionthreatened.
(ixb) The Registration StatementCompany shall have requested and caused ▇▇▇▇▇▇ LLP, counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, to have furnished 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.
Representatives (x) If the Securities are to be listed on the NYSEtheir opinion, authorization therefor has been given, subject to official notice of issuance (y) their negative assurance letter and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents (z) their opinion with respect to certain intellectual property matters, each dated the Securities with the NYSE, and Closing Date or 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 advisorother settlement date, as the case may be, in each jurisdiction in which and addressed to 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 Representatives, as attached as Exhibit B-1, Exhibit B-2 and where the failure to so qualify or register would have a material adverse effect on the Company and its subsidiaries taken as a wholeExhibit B-3.
(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 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinionsand negative assurance letter, dated the day of Closing Date or such other settlement date, as the Closing Datecase may be, 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 (ii) the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of Closing Date or such other settlement date, as the Closing Datecase may be, 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, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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 or such other settlement date, as the case may be, with the same effect as if made on the Closing DateDate or such other settlement date, as the case may be, 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.Date or such other settlement date, as the case may be;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 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 extending through the latest date Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives certificates of the Company, signed by the principal financial officer of the Company, dated as of the Execution Time and as of the Closing Date or such other settlement date, as the case may be, in form and substance satisfactory to the Underwriters.
(f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date or such other settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date or such other settlement date, as the case may be, in form and substance reasonably satisfactory to the Representatives.
(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) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been 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 have monthly financial statementstaken as a whole, there was a consolidated net loss 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 (IIIexclusive of any supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with respect 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) Prior to the amounts Closing Date, the Company shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(i) The Securities to be delivered on the Closing Date or such other settlement date, as the case may be, shall have been listed and admitted and authorized for trading on the NASDAQ, and satisfactory evidence of net capital 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 executive officer and director of the Company and specified holders of the Company’s equity securities addressed to the Representatives.
(k) If a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(l) If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or excess net capital 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 in respect of the Underwritten Securities or, in the case of any condition to the purchase of Option Securities on any such other settlement date which is after the Closing Date the obligations of the several Underwriters to purchase the relevant Option Securities may be canceled at, or at any time prior to, the Closing Date or such other settlement date, as the case may be, 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, on the Closing Date or such other settlement date, as the case may be, at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in LLP, counsel for the most recent financial statement of Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificatescertificates pursuant to the provisions hereof, opinionsto the performance by the Company of its obligations hereunder and to the following additional conditions:
(i) The Canadian Final Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures, affidavits(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 1933 Act and (iii) the final term sheet contemplated by Section 5(a) hereof, written statements and any other material required to be filed by the Company in accordance with Rule 433(d) under the 1933 Act shall have been filed with the Commission, in each case, within the applicable time period prescribed for such filing and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or letters any part thereof shall have been issued and no order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for any such purpose shall have been initiated or threatened by the Commission or the Reviewing Authority.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, United States counsel for the Company, to have furnished to the Representatives or their opinion, dated the Closing Date and addressed to the Representatives, which opinion may be based upon normal assumptions and be subject to such conditions as shall be reasonable under the circumstances, in the form of Exhibit A hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, Canadian counsel for the Company, 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of the Closing Date, Date and addressed to the effect that:
(i) The Company has been duly organized Representatives, which opinion may be based upon normal assumptions and is validly existing and in good standing be subject to such conditions as shall be reasonable 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 circumstances, in the Final Prospectusform of Exhibit B hereto.
(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.
(ed) The Representatives shall have received from Shearman & Sterling LLP, United States counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package and 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 reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President signed by two senior officers (one executive and its Chief Financial Officer or its Treasurerone financial) of the Company acceptable to the Representatives, acting reasonably (on behalf of the Company and not in a personal capacity), dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry:
(i) The the signers of such certificate have carefully examined the Registration Statement, the Canadian Basic Prospectus, the U.S. Basic Prospectus, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, any supplements to the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package and this Agreement, as well as each electronic road show used in connection with the offering of the Securities;
(ii) 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, Date and the Company has 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.;
(iiiii) No no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any prospectus (including any Issuer Free Writing Prospectus) relating to the Securities has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Reviewing Authority or threatenedthe Commission; and
(iv) since the date of the most recent financial statements included or incorporated by reference in the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package.
(xf) The Registration Statement does not contain any untrue statement receipt obtained from the Reviewing Authority in respect 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) Canadian Basic Prospectus shall remain in effect and the Canadian 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 shall have been filed with the statements thereinReviewing Authority as promptly as practicable after the date hereof and, in any event, within the light time period prescribed under the Shelf Procedures. No order having the effect of ceasing or suspending the distribution of or the trading in the securities of the circumstances under which they were made, not misleading, Company shall have been issued by the Reviewing Authority or any stock exchange and no proceedings for that purpose shall have been issued by the Reviewing Authority or any stock exchange and any request for additional information shall have been complied with.
(zg) since No stop order suspending the effective date effectiveness of the Registration Statement there has not occurred shall have been issued and no proceedings for that purpose shall have been instituted by the Commission and any event required to be set forth in an amended or supplemented prospectus which has not request for additional information shall have been so set forth. 14complied with.
(gh) At Ernst & Young LLP, Chartered Accountants, the Closing Dateindependent chartered accountants of the Company, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letterRepresentatives, at the Execution 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 day Execution Time and as 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 together with signed or reproduced copies of such letter for each of the Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package.
(i) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated dates as of which information is given in the Registration Statement, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, there shall not have been (i) any change 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 statements or otherwise), earnings, business or properties of the Company and its subsidiaries, and the supporting schedulestaken as a whole, included whether or not arising from transactions in the Registration Statement and ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, the U.S. Final Prospectus and audited by them comply the Disclosure Package 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 form make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package.
(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 ▇▇▇▇ ▇▇▇) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 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 in all material respects with the applicable accounting requirements when and as provided in this Agreement, or if any of the Securities Act 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 Exchange Act Representatives and counsel for the related published rules Underwriters, this Agreement and regulations thereunder.
(ii) On the basis of a reading all obligations of the unaudited consolidated financial statements 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 its subsidiariesin writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, if anyUnited States counsel for the Company, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in , on the most recent financial statement of ▇▇▇▇▇▇ 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 aClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company contained herein as of the date hereof and Applicable Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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.Registration Statement, New York City time, has become effective and 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 Closing Date no stop order suspending the effectiveness of the Registration StatementStatement shall have been issued under the 1933 Act, as amended from time no stop order pursuant to time, or suspending the qualification Section 8(d) of the Indenture1933 Act shall have been issued, shall be in effect and no proceedings for such purpose with respect to either shall be pending before or have been initiated or, to the Company’s knowledge, threatened by the Commission Commission, and any requests for additional information request on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 497 (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) The Company’s General Counsel shall have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B thereto.
(c) Since The Company shall have requested and caused ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the respective dates as of which information is given in Company, to have furnished to the Registration Statement Representatives their opinion, dated the Closing Date and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred addressed to in paragraph (g) of this Section 6 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with substantially in the offering and delivery of the Securities as contemplated by the Registration Statement and the Final Prospectusform set forth in Exhibit C thereto.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, to have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of the Closing Date, Date and addressed 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 Representatives, substantially in the Final Prospectus.
(ii) The Securities and the Indenture conform form set forth 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 TrusteeExhibit D thereto.
(e) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Disclosure Package, the Prospectus Supplement (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 reasonably 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 Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus Supplement 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 or, to the Company’s knowledge, threatened.; and
(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 (ziii) since the effective date of the Registration Statement most recent financial statements included in the Disclosure Package and the Prospectus Supplement (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 occurred any event required to be arising from transactions in the ordinary course of business, except as set forth in an amended or supplemented prospectus which has not been so set forth. 14contemplated in the Disclosure Package and the Prospectus Supplement (exclusive of any supplement thereto).
(g) At The Company shall have requested and caused BDO ▇▇▇▇▇▇▇, LLP to have furnished to the Representatives, at the Applicable Time and at the Closing Date, a nationally recognized firm letters, (which may refer to letters previously delivered to one or more of independent public accountants shall have furnished to the Representatives a letterRepresentatives), dated respectively as of the day Applicable Time and as 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, confirming that they are independent accountants within the meaning of the 1933 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, 2008, and as at March 31, 2008, in accordance with Statement on Auditing Standards No. 100, and stating in effect that:
(i) In in their opinion, opinion the consolidated audited financial statements of the Company and its subsidiaries, financial statement schedules and the supporting schedules, pro forma financial statements included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus Supplement and audited reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities 1933 Act and the Exchange Act and the related published rules and regulations thereunder.adopted by the Commission;
(ii) On 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 ▇▇▇▇▇▇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, 2008, and as at March 31, 2008 included in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement; carrying out certain specified procedures (but not an audit 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, nominating and corporate governance committees of the Company and ▇▇▇▇▇▇, the Subsidiaries; 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, 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 ProspectusJune 30, 2007 , nothing came to their attention that which caused them to believe that:
(A1) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus, for them Prospectus Supplement do not comply as to be form with applicable accounting requirements of the 1933 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; 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 principles applied on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus.Prospectus Supplement;
(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, (II2) 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 statementsMarch 31, 2008, there was a consolidated net loss or (III) with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5were any changes, 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 at a specified date not more than three business five days prior to the date of the letter, there was any decrease in the capital stock credit facility payable or additional paid-payable for securities purchased or decreases in capitalthe net assets as compared with the amounts shown on the March 31, 2008 consolidated statement of assets and liabilities included in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement, or increase for the period from April 1, 2008 to such specified date there were any decreases, as compared with the corresponding period in long-term indebtedness the preceding quarter in total investment income, net investment income or earnings per common share 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 changes or decreases set forth in such letter, in which case the letter shall be aaccompanied 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 Prospectus Supplement 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 Prospectus Supplement and in Exhibit 12 to the Registration Statement, including the information set forth under the caption “Selected Condensed Financial Data” in the Preliminary Prospectus and the Prospectus Supplement. References to the Prospectus Supplement in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus Supplement (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 (g) of this Section 7 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 Supplement (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 Prospectus Supplement (exclusive of any amendment or supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) On the Closing Date, the Underwriters shall have received from BDO ▇▇▇▇▇▇▇, LLP a letter, dated as of Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(g) of this Agreement.
(k) The FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) On or before the date hereof, the Company shall have procured for the benefit of the Underwriters lock-up agreements, in the form of Exhibit A attached hereto, from all of the Company’s officers and directors, the Adviser and all of the officers and directors of the Adviser.
(m) In the event that the Underwriters exercise their option provided in Section 3(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company, the Adviser and the Administrator contained herein and the statements in any certificates furnished by the Company, the Adviser and the Administrator hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriters shall have received:
(i) Certificates, dated such Date of Delivery, of a duly authorized officer of the Company, the Adviser and the Administrator and of the chief financial or chief accounting officer of the Company, the Adviser and the Administrator confirming that the information contained in the certificate delivered by each of them at the Closing Date pursuant to Section 7(f) hereof remains true and correct as of such Date of Delivery.
(ii) The opinions of the Company’s General Counsel, ▇▇▇▇▇▇▇▇ Chance US LLP and ▇▇▇▇▇▇▇ LLP, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 7(b), 7(c) and 7(d) hereof.
(iii) The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 7(e) hereof.
(iv) A letter from BDO ▇▇▇▇▇▇▇, LLP in form and substance satisfactory to the Underwriters and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 7(g) hereof.
(n) On the Closing Date and at each Date of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(o) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities, on a Date of Delivery which is after the Closing Date, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Underwriters by notice to the Company at any time at or prior to Closing Date or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 2, 9 and 14 shall survive any such termination and remain in full force and effect. 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, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Purchased Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop order suspending in whole or in part the effectiveness of the Registration Statement, as amended from time to time, or suspending the qualification of the Indenture, any notice objecting to its use shall be in effect have been issued and no proceedings for such that purpose shall be pending before have been instituted 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 threatened; the Final Prospectus or otherwise) and any supplement thereto shall have been complied filed in the manner and within the time period required by Rule 424(b) under the Act; the final term sheet(s) contemplated by Section 4(i) hereto, if applicable, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with to the reasonable satisfaction of Commission within the Representativesapplicable time periods prescribed for such filings by Rule 433 under the Act.
(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.
(db) The Company shall have furnished to the Representatives Underwriters the opinion of a Deputy General Counsel or the Chief Legal Officer for ▇▇ ▇▇▇▇ ▇▇, Vice President and Corporate Secretary of the Company, or such other counsel to the Company reasonably acceptable to the Representatives, dated the day of the Closing Date, to the effect that:
(i) The the Company has been duly organized incorporated and is validly existing and as a corporation in good standing under the laws of the jurisdiction of its incorporation in which it is chartered with all requisite full corporate power and authority to own and operate its properties and to conduct its business as described in the Disclosure Package and the Final Prospectus.;
(ii) The Securities the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Indenture Final Prospectus; the Purchased Securities conform in all material respects to the descriptions description thereof contained in the Disclosure Package and 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 if 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 Purchased Securities are to be listed on the NYSENasdaq Stock Market, 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 Purchased Securities with the NYSE, Nasdaq Stock Market and such counsel has no reason to believe that the Purchased Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution.;
(xiiii) The Named Subsidiary is a the Indenture has been duly organized authorized, executed and validly existing corporation in good standing delivered; the Indenture has been duly qualified under the Trust Indenture Act; the Indenture constitutes a valid and legally binding instrument enforceable against the Company in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally and general principles of equity from time to time in effect; and the Purchased Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the jurisdiction of its incorporation with all requisite corporate power Indenture and authority delivered to own and operate its properties paid for by the Underwriters pursuant to this Agreement, will constitute valid and to conduct its business as described in the Final Prospectus. Each legally binding obligations of the Company and its Named Subsidiary is duly qualified entitled 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 benefits 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.Indenture;
(xiiiv) All to the outstanding shares best knowledge of capital stock of the Company's Named Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable andsuch counsel, 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 there is no pending or threatened against action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is a character required to be disclosed in the Final Prospectus Registration Statement which is not adequately disclosed in the Preliminary Final Prospectus and correctly summarized therein. Such opinion shall also contain the Final Prospectus, and there is no franchise, contract or other document of a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracycharacter required to be disclosed, completeness or fairness of the statements contained to be filed as an exhibit, in the Registration Statement which is not adequately disclosed in the Preliminary Final Prospectus and the Final Prospectus;
(v) the Registration Statement and any amendments thereto have become effective under the Act; the Final Prospectus has been filed in the manner and within the time period required by Rule 424; to the best knowledge of such counsel, no stop order suspending in whole or in part the effectiveness of the Registration Statement, as amended, 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 Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (except other than the financial statements and other financial and statistical information and management’s report on the effectiveness of internal control over financial reporting contained therein as to those matters stated which such counsel need express no opinion) comply as to form in paragraph (ii) all material respects with the applicable requirements of such opinion)the Act and the Exchange Act, and the respective rules thereunder; and such counsel has no reason to believe that (i) the Registration Statement, as or any amendment thereof, at the time it became effective and at the date of its effective datethis Agreement, 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) that the Final Prospectus contains Prospectus, as amended or supplemented, as of its date or the Closing Date includes any untrue statement of a material fact or omits to state any a 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 in each case, other than the financial statements and other financial and statistical information and management’s report on the effectiveness of internal control over financial reporting contained therein as to which such counsel need express no opinion);
(vi) 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 final term sheet(s) prepared and filed pursuant to Section 4(i) hereof, if applicable, when taken together as a whole, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information and management’s report on the effectiveness of internal control over financial reporting contained therein as to which such counsel need express no opinion);
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court or governmental agency or body is required for 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 in connection with the purchase and distribution of Purchased Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Purchased 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 constitute a default under (i) the certificate of incorporation or by-laws of the Company, (ii) the terms of any indenture or other financial agreement or statistical data instrument known to such counsel to which the Company is a party or bound, or (iii) any order, rule or regulation known to such counsel of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Form T-1 included Company, except in the case of clauses (ii) and (iii) where any such breach, violation or incorporated by reference therein)default would not be material to the Company and its subsidiaries taken as a whole; and
(x) no holders of securities of the Company have rights 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 jurisdictions other than the States of Delaware and New York or the United States, to the extent deemed proper and specified in such opinion, upon opinions the opinion of local other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company 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.
(ec) The Representatives Underwriters shall have received from counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Purchased Securities, the Indenture, 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.
(fd) The Company shall have furnished to the Representatives Underwriters a certificate of its the Company signed by the Chief Executive Financial Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its the Treasurer, any Assistant Treasurer or the Controller of the Company, dated the day of the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and any supplements or amendments thereto, as well as each electronic roadshow used to offer the Purchased Securities, if any, and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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, 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 no stop order suspending in whole or in part the effectiveness of the Registration Statement Statement, as amended, or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or or, to their knowledge, threatened.; and
(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 (ziii) 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 Disclosure Package and the Final Prospectus and extending through Prospectus, there has been no material adverse change in the latest date as condition (financial or other), earnings, business or properties of which the Company and its subsidiaries Significant Subsidiary, 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.
(e) On the date of this Agreement and on the Closing Date, the Company’s auditor(s) shall have monthly financial statementsfurnished to the Underwriters, there was a consolidated net loss or (III) at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 and certain financial information contained or incorporated by reference in the Registration Statement Statement, the Disclosure Package and the Final Prospectus;
(D; provided that the letter(s) as of delivered on the Closing Date shall use a specified “cut-off” date not no more than three business days prior to the date Closing Date.
(f) Subsequent to the respective dates as of which information is given in the letterRegistration Statement, the Disclosure Package and the Final Prospectus, there was shall not have been
(i) any change or decrease specified in the capital stock letter or additional paid-letters referred to in capitalparagraph (e) of this Section 5; or
(ii) any change, or increase any development involving a prospective change, in long-term indebtedness or affecting the business or properties of the Company and its subsidiariesSignificant Subsidiary, except as compared set forth in or contemplated in the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the amounts shown in offering or the most recent consolidated statement of financial condition delivery of the Company and its subsidiaries included in Purchased Securities as contemplated by the Registration Statement Statement, the Disclosure Package and the Final Prospectus; except .
(g) Subsequent to the execution of this Agreement, 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 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.
(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 instances 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 increases the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the Closing Date by the Representatives. Notice of such letter, in which case the letter cancellation shall be agiven to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of counsel for the Underwriters, at the principal offices of such counsel, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Honeywell International Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Firm Shares and the Option Shares, 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 Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission pursuant to in the manner and within the time period so required (without reliance on Rule 424 not later than 5:00 p.m., New York City time, on 424(b)(8) or 164(b) under the second business day following Act); the date of this Agreement or such later date and time as Registration Statement shall be consented to in writing by the Representatives.
(b) No remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462 Registration Statement, as amended from time to timeor any amendment thereof, nor suspending or suspending preventing the qualification use of the IndenturePricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall be in effect and have been issued; no proceedings for the issuance of such purpose an order shall be pending before have been initiated or threatened by threatened; any request of the Commission and any requests or the Underwriters for additional information on the part of the Commission (to be included in the Registration Statement or Statement, the Final Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction Underwriters’ satisfaction.
(b) The Representative shall have received confirmation from ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ P.C. that there are no claims to which its representation has been sought and that are outstanding in respect of the RepresentativesCompany.
(c) Since The Company shall have requested and caused ▇▇▇▇▇▇▇▇ Brog Leinwand ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ P.C., counsel for the respective dates as of which information is given Company, to have furnished to the Representative their written opinion and Rule 10b-5 negative assurance letter substantially in the Registration Statement form set forth in Exhibit C hereto, dated the Closing Date and any settlement date and addressed to 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 ProspectusRepresentative.
(d) The Company Representative shall have furnished to received the Representatives written opinion and Rule 10b-5 negative assurance letter of Shearman & Sterling LLP, the opinion of a Deputy General Counsel or the Chief Legal Officer for the CompanyUnderwriters’ counsel, dated the day of the Closing Date, Date and addressed 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 DateRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel Shearman & Sterling LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representative shall have received the opinion of Law Offices of ▇▇▇▇▇▇ ▇. ▇▇▇▇, PLLC, special intellectual property counsel for the Company, dated the Closing Date and addressed to the Representative substantially in the form set forth in Exhibit D hereto.
(f) The Representative shall have received the opinion of Blooston, Mordkofsky, Dickens, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company, dated the Closing Date and addressed to the Representative substantially in the form set forth in Exhibit E hereto.
(g) The Company shall have furnished to the Representatives Representative a certificate of its the Company, signed by the Chief Executive Officer, its President or any Managing Director or Vice President Officer and its the Chief Financial Officer of the Company or any other officers of the Company acceptable to the Representative in its Treasurerdiscretion, dated the day of the Closing DateDate and any settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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 and any settlement date with the same effect as if made on the Closing Date, 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.Date and any settlement date;
(ii) No no stop order or other order (A) suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to their knowledge, is contemplated by the Commission or threatened.any state or regulatory body;
(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 (ziii) 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 Pricing Disclosure Package and the Final Prospectus Prospectus, there has been no Material Adverse Change; and
(iv) the Company has complied with the terms and extending through conditions of this Agreement on its part to be complied with up to the latest date time of closing on the Closing Date.
(h) The Representative shall have received on and as of which the Closing Date and any settlement date, as the case may be, satisfactory evidence of the good standing of the Company in Delaware in writing from the Delaware Secretary of State.
(i) The Company shall have requested 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 caused ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant , LLP, to Commission Rule 17a-5have furnished to the Representative, there has been at the Execution Time and at the Closing Date and any decrease settlement 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 any settlement date, in such amounts as compared with form and substance satisfactory to the amounts shown Representative, confirming that it is an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering, without limitation, the Company’s audited financial statements for the years ended December 31, 2012 and December 31, 2013 and the various financial disclosures related thereto contained in the most recent consolidated financial statements included Registration Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectuses, if any.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement and the Final Prospectus;, there shall not have been (A) any change or decrease specified in the letters referred to in paragraph (h) of this Section 4 or (B) any Material Adverse Change, the effect of which, in any case referred to in clause (A) or (B) 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 Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(Dk) as of a specified date not more than three business days prior FINRA shall have raised no objection to the date fairness and reasonableness of the letterunderwriting terms and arrangements.
(l) Prior to the Closing Date and any settlement date, there was any decrease in the capital stock or Company shall have furnished to the Representative such further information, certificates and documents as the Underwriters may reasonably request.
(m) The Company shall have filed a listing of additional paidshares form with NASDAQ.
(n) At the Execution Time, the Company shall have furnished to the Representative Lock-in capital, or increase in long-term indebtedness Up Agreements executed by each officer and director of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement each beneficial owner of financial condition 10% or more of the Company outstanding Common Stock of the Company. If any of the conditions specified in this Section 4 shall not have been fulfilled when and its subsidiaries included as provided in this Agreement, or if any of the Registration Statement opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Final Prospectus; except in Representative and counsel for the Underwriters, this Agreement and all instances for increases obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the Closing Date by the Representative. Notice of such letter, in which case the letter cancellation shall be agiven to the Company in writing or by telephone confirmed in writing. The documents required to be delivered by this Section 4 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Underwriters, at the Closing Location, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and each Subsidiary Guarantor contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and each Subsidiary Guarantor made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company and each Subsidiary Guarantor of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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) shall have been filed with the Commission pursuant to SEC within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time or any post-effective amendment to timethe Registration Statement, or suspending the qualification of the Indenture, any notice objecting to its use shall be in effect have been issued and no proceedings for such that purpose shall be pending before or threatened by the Commission and any requests for additional information on the part pursuant to Section 8A of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) Securities Act shall have been complied with to the reasonable satisfaction of the Representativesinstituted or threatened.
(cb) Since On the respective dates as of which information is given in Closing date, 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 Underwrites shall have furnished to received the Representatives the favorable opinion of a Deputy General Counsel or the Chief Legal Officer (i) ▇▇▇▇▇ Lord LLP, counsel for the Company, dated the day as of the Closing Date, to the effect that:
(i) The Company has been duly organized form of which is attached as Exhibit A, 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▇▇▇▇▇▇▇▇ & Wedge, 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 Nevada 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 dated as of the Trustee with respect to Closing Date, the execution form of the Securities by the Company and the authentication thereof by the Trustee.which is attached as Exhibit B.
(ec) The Representatives On the Closing Date, the Underwriters shall have received from the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day as of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the 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.
(fd) The On the Closing Date, the Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, the Chief Executive Officer, its President Officer or any Managing Director or Vice the President and its the Chief Financial Officer or its TreasurerChief Accounting Officer of the Company, dated the day as of 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 amendments or supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The representations Subsequent to the Execution Time, there has not occurred any Material Adverse Effect;
(ii) the representations, warranties and warranties covenants of the Company and each Subsidiary Guarantor in this Agreement were true and correct on and as of the date hereof and 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 ; and
(iii) the Company and each Subsidiary Guarantor has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(iie) No stop order suspending The Underwriters shall have received from Ernst & Young LLP, the effectiveness independent registered public accounting firm for the Company, (i) at the Execution Time, a letter (which may refer to letters previously delivered to one or more 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 misleadingUnderwriters), (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 dated as of the circumstances under which they were madeExecution Time, 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, covering the consolidated financial statements information of the Company and its subsidiaries, and the supporting schedules, included or incorporated by reference in the Registration Statement and the Final Preliminary Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act other customary information, and the Exchange Act and the related published rules and regulations thereunder.
(ii) On at the basis of Closing Date, a reading letter (which may refer to letters previously delivered to one or more of the unaudited consolidated financial statements Underwriters), dated as of the Company Closing Date, in form and its subsidiariessubstance satisfactory to the Representatives, if anyto the effect that they reaffirm the statements made in the letter furnished by them pursuant to clause (i), except that (A) it shall cover the financial information included in the Registration Statement and or incorporated by reference in the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company any amendment or supplement thereto 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 referred to therein for carrying out of procedures shall be no more than three business days prior to the date Closing Date.
(f) The Underwriters shall have received from KPMG LLP, the independent registered public accounting firm for ▇▇▇▇▇ Park Energy LLC and its subsidiaries, (i) at the Execution Time, a letter (which may refer to letters previously delivered to one or more of the letterUnderwriters), there was any decrease dated as of the Execution Time, in form and substance satisfactory to the Representatives, covering the financial information of ▇▇▇▇▇ Park Energy LLC included or incorporated by reference in the capital stock Registration Statement and the Preliminary Prospectus and other customary information, and (ii) at the Closing Date, a letter (which may refer to letters previously delivered to one or additional paid-more of the Underwriters), dated as of the Closing Date, in capitalform and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to clause (i), except that (A) it shall cover the financial information included in or increase incorporated by reference in long-term indebtedness the Final Prospectus and any amendment or supplement thereto and (B) the specified date referred to therein for carrying out of procedures shall be no more than three business days prior to the Closing Date.
(g) The Underwriters shall have received from ▇▇▇ ▇▇▇▇▇▇▇ & Associates, Inc., independent petroleum consultants with respect to the Company and its subsidiaries, (i) at the Execution Time, a letter, dated as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company Execution Time, in form and its subsidiaries substance satisfactory to the Representatives, covering the reserve information included or incorporated by reference in the Registration Statement and the Preliminary Prospectus and other customary information, and (ii) at the Closing Date, a letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to clause (i), except that it shall cover the reserve information included or incorporated by reference in the Final Prospectus; except Prospectus and any amendment or supplement thereto.
(h) The Underwriters shall have received from Netherland, ▇▇▇▇▇▇ & Associates, Inc., independent reserve engineers for the Company and its subsidiaries, (i) at the Execution Time, a reserve report confirmation letter, dated as of the Execution Time, in all instances for increases or decreases set forth form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in such letters with respect to its audits of the reserves of the Company referred to in the Disclosure Package and (ii) at the Closing Date, a reserve report confirmation letter, dated as of the Closing Date, in which case form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to clause (i), except that it shall cover the reserve information included or incorporated by reference in the Final Prospectus and any amendment or supplement thereto.
(i) The Underwriters shall have received from the Chief Financial Officer of the Company, (i) at the Execution Time, a certificate, dated as of the Execution Time, in form and substance satisfactory to the Representatives, providing “management comfort” with respect to certain financial statements and financial information included or incorporated by reference in the Registration Statement and the Preliminary Prospectus, and (ii) at the Closing Date, a certificate, dated as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect that the Chief Financial Officer reaffirms the statements made in the certificate furnished pursuant to clause (i), except that it shall cover the financial statements and financial information included or incorporated by reference in the Final Prospectus and any amendment or supplement thereto.
(j) 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), paragraph (f), paragraph (g), paragraph (h) or paragraph (i) of this Section 6 the effect of which 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), or (ii) in the sole judgment of the Representatives, any Material Adverse Effect.
(k) Prior to the Closing Date, the Company and the Subsidiary Guarantors 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 by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(m) The Company shall have executed and delivered the Officers’ Certificate, in form and substance satisfactory to the Representatives, and the Representatives shall have received executed copies thereof. 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 agiven to the Company in writing (including by electronic mail) or by telephone 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 2100, Dallas, Texas 75201 or sent by electronic mail to ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantors contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and the Guarantors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company and the Guarantors of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending or threatened by pursuant to Section 8A or Rule 401(g)(2) under the CommissionSecurities Act shall have been instituted or threatened. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act.
(ixb) The Registration Statement▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, special counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, shall have furnished to the financial statements or other financial or statistical data or Underwriters its written opinion addressed to the Form T-1 Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form 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 RulesAnnex I hereto.
(xc) If ▇▇▇▇▇ Peabody LLP, counsel for the Securities are to be listed on the NYSEIssuers, 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 shall have furnished to the Securities with Underwriters its written opinion addressed to the NYSEUnderwriters, and such counsel has no reason to believe that dated 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 beClosing Date, 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 form 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 substance reasonably satisfactory to the Representatives Representative, substantially in the form of Annex II hereto;
(d) DLA Piper US LLP, local counsel for matters not governed by New York law and may rely as to matters one of factthe Guarantors, shall have furnished 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 Underwriters its written opinion addressed to the execution Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form of the Securities by the Company and the authentication thereof by the Trustee.Annex III hereto;
(e) The Representatives Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company Issuers 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 Representatives Representative a certificate of its Chief Executive Officerthe Company, its President signed by the Company’s Treasurer or any Managing Director or Vice President an executive officer of the Company with specific knowledge about the Company’s financial and its Chief Financial Officer or its Treasureroperational matters reasonably satisfactory to the Representative, dated the day of the Closing Date, to the effect that the signer of such certificate has 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, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company each Issuer 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, 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 no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act has been issued and no proceedings for that purpose have been instituted or or, to the Company’s knowledge, threatened.; and
(xiii) The Registration Statement does since August 31, 2015 there shall not contain have occurred any untrue statement event that would have a Material Adverse Effect or any development involving a prospective Material Adverse Effect, whether or not arising from transactions in the ordinary course of a material fact business, except as set forth in or omit to state any material fact required to be stated therein or necessary to make contemplated in the statements therein not misleading, (y) Disclosure Package and the Final Prospectus does not contain (exclusive of any untrue statement of a material fact amendment 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. 14supplement thereto).
(g) At The Company shall have requested and caused KPMG LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, a nationally recognized firm letters, (which may refer to letters previously delivered to one or more of independent public accountants shall have furnished to the Representatives a letterUnderwriters), dated respectively as of the day Execution Time and as of the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and in each case in form and substance satisfactory to the Representatives, stating Representative containing statements and information of the type customarily included in effect that:
(i) In their opinion, accountants “comfort letters” to underwriters with respect to the consolidated financial statements of the Company and its subsidiaries, certain financial information contained or incorporated by reference in the Disclosure Package and the supporting schedulesFinal Prospectus.
(h) Subsequent to the Execution Time or, included 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 beyond that reported in paragraph 5(b) or 6 of 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, 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 Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, 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 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.
(j) FINRA has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(k) On the date hereof, the Company shall have furnished to the Representative a certificate of the Company, signed by the Company’s Chief Financial Officer, in form and substance reasonably satisfactory to the Representative, to the effect that the signer of such certificate (i) has reviewed (x) the audited financial statements of Crown as of December 31, 2012 and 2011 and for each of the three years in the period ended December 31, 2012 (collectively, the “Crown Financials”) and (y) the carve-out combined financial statements of Piedras Negras Brewery Business as of December 31, 2012 and 2011 and as of January 1, 2011 and for the years ended December 31, 2012 and 2011 (collectively, the “Piedras Negras Brewery Business Financials”), both financials incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus and audited by (ii) certifies that the Company has not become aware of any circumstances and there has not occurred any event known to the Chief Financial Officer of the Company that would require a modification of the Crown Financials for them comply as to be in accordance with GAAP or of the Piedras Negras Brewery Business Financials for them to be in accordance with IFRS. On the Closing Date, the Representative shall have received from the Chief Financial Officer of the Company a certificate dated such date in form and substance reasonably satisfactory to the Representative, to the effect that he reaffirms in all material respects with the applicable accounting requirements statements made in the certificate furnished by him pursuant to the previous sentence of the Securities Act and the Exchange Act and the related published rules and regulations thereunderthis subsection (k).
(iil) On Prior to the basis of a reading Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the unaudited consolidated financial statements 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 Company opinions and its subsidiariescertificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, if any, included in the Registration Statement this Agreement and the Final Prospectus and all obligations of the latest unaudited consolidated financial statements made available 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 and 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 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Constellation Brands, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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), shall have been filed with the Commission pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of Closing Date and addressed to the Closing DateRepresentatives, to the effect that:
(i) The Company the Registration Statement is an “automatic shelf registration statement” (as defined under Rule 405) that has been duly filed with the Commission not earlier than three years prior to the date of the Underwriting Agreement; the Indenture has been qualified under the Trust Indenture Act; each Preliminary Prospectus and the Final Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein; and no order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering of the Securities is pending or, to the knowledge of such counsel, threatened by the Commission; and the Registration Statement and the Final Prospectus (other than the financial statements and other financial 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 Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder.
(ii) each of the Company and the Significant Subsidiaries that is incorporated or organized and under the laws of a United States jurisdiction is validly existing and as a corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized, with all requisite full corporate or company 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 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 where such failure to be so qualified would not result in a Material Adverse Effect;
(iiiii) The the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.;
(iiiiv) The the Indenture has been duly authorized, executed and delivered delivered, and, assuming due authorization, execution and delivery of the Indenture by the CompanyTrustee, 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; terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(v) the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting 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 Company entitled to the benefits of the Indenture; provided howeverIndenture (subject, that the foregoing is subject as to the effects binding obligations of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar laws relating to or affecting creditors' ’ rights generallygenerally from time to time in effect and to general principles of equity, general equitable principles (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing.);
(ivvi) No to such counsel’s knowledge, 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 pursuant to Item 103 of Regulation S-K in the Company’s periodic reports filed under the Exchange Act which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required, and to the extent that they constitute matters of law, summaries of legal matters or legal conclusions, the statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations” are accurate in all material respects and fairly present the information provided;
(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 Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization authorization, order, registration or order qualification of or with any court or arbitrator or governmental agency or body regulatory authority is required for to be obtained by the consummation of Company in connection with the transactions contemplated in this Agreementherein, except for (1) the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations authorizations, orders and registrations or orders as have been obtained under the Securities Act and such qualifications as may be required under the Exchange Act and the blue sky laws of any United States state jurisdiction or the securities laws of any foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, ;
(x) neither the execution and (2) the qualification delivery of the Indenture under Indenture, the Trust Indenture Actissue and sale of the Securities, which has been obtained.
(v) Such counsel does not know nor the consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof will not conflict with, or result in the creation a breach or violation of, or imposition of any material lien, charge or encumbrance upon any of the property or assets of the Company or its Named any Significant Subsidiary pursuant to to, (i) 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 any Significant Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or any orderSignificant Subsidiary is a party or bound or to which its or their property is subject or (iii) any statute, law, rule or regulation or judgment, order or decree known to such counsel us, applicable to the Company or any Significant Subsidiary of any court court, regulatory body, administrative agency, governmental body, arbitrator or governmental agency other authority having jurisdiction over the Company, its Named Company or any Significant Subsidiary or any of their respective properties, except in the effect case of which clauses (ii) and (iii) for such breaches, violations or defaults that could not adversely affect in a material respect the ability of the Company to perform its obligations under this Agreement, or would otherwise not be material in the context of the sale of the Securities; and
(xi) to such counsel’s knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under independent accountants and counsel at which conferences the Securities Act, and, to the best contents 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 Disclosure Package and the Final Prospectus and each any amendment thereof or and 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 related matters were discussed 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 assumes no responsibility for the accuracy, completeness or fairness of the statements contained in Registration Statement, the Registration Statement and Disclosure Package, the Final Prospectus and any amendment or supplement thereto (except as to those matters stated in paragraph (ii) of such opinionexpressly provided above), no facts have come to such counsel’s attention that cause such counsel has no reason to believe that (i) at the Effective Date immediately preceding the Execution Time, the Registration StatementStatement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, as of its effective date(ii) the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading or and (iiiii) the Final Prospectus or any amendment or supplement thereto, as of its date and the Closing Date, contains any untrue statement of a material fact or omits to state any a 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 other than, in each case, the financial statements or statements, related schedules and other financial or statistical data or the Form T-1 included or incorporated by reference therein, as to which such counsel need express no belief). 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, 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 opinions the opinion of local other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters and may rely (B) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and public officials. Such counsel may rely on a certificate of the Trustee with respect References to the execution of Final Prospectus in this Section 7(b) shall also include any supplements thereto at the Securities by the Company and the authentication thereof by the TrusteeClosing Date.
(ec) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the 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.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, solely in their respective capacities as such, dated the day of 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, and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 threatenedincorporated by reference in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time).
(xe) 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, Company shall have requested 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 Deloitte & Touche LLP shall have furnished to the Representatives a letterRepresentatives, at the Execution Time and at the Closing Date, “comfort” letters, dated as of the day date of this Agreement and as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent auditors with respect to the Company registered public accounting firm within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have audited the consolidated financial information of the Company for the year ended December 28, 2019, in form accordance with the standards of the Public Company Accounting Oversight Board (United States), and substance satisfactory to the Representatives, stating in effect that:
(i) In in their opinion, opinion the consolidated audited financial statements of the Company and its subsidiaries, and the supporting schedules, included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus and audited reported on 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.adopted by the Commission;
(ii) On on the basis of a reading their audit of the unaudited consolidated financial statements of information for the Company and its subsidiariesyear ended December 28, if any2019, included in the Registration Statement Preliminary Prospectus and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇, Prospectus; carrying out certain specified procedures (but not an audit 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 committee of the Company and ▇▇▇▇▇▇, Company; 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, 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 ProspectusDecember 28, 2019, nothing came to their attention that which caused them to believe that:
(A1) any audited financial statements of the Company 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 Securities Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in the annual report on Form 10-K under the Exchange Act; and said audited financial statements are not in conformity with GAAP; and
(2) (i) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if anystatements, included in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; GAAP, and such (ii) the unaudited 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, related rules and regulations thereunder.adopted by the Commission; and
(Biii) the unaudited capsule they have performed certain other specified procedures as a result of which they determined that certain information of the Company and its subsidiariesan accounting, if anyfinancial or statistical nature (which is limited to accounting, 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 asta
Appears in 1 contract
Sources: Underwriting Agreement (Snap-on Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer Helms Mulliss & ▇▇▇▇er, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of Paul J. Polking, ▇▇▇▇▇▇▇ ▇▇▇▇▇el to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; <Page> 6
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and <Page> 7
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, 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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from Stroock & Stroock & Lavan LLP, coun▇▇▇ ▇or the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or complied with all the <Page> 8 agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by <Page> 9 reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantors contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and the Guarantors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company and the Guarantors of its respective their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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) hereof, 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 pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending or threatened by pursuant to Section 8A or Rule 401(g)(2) under the CommissionAct shall have been instituted or threatened. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Act.
(ixb) The Registration Statement▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, special counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, shall have furnished to the financial statements or other financial or statistical data or Underwriters its written opinion and negative assurance letter, each addressed to the Form T-1 Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form 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 RulesAnnex I hereto.
(xc) If ▇▇▇▇▇ Peabody LLP, counsel for the Securities are to be listed on the NYSEIssuers, 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 shall have furnished to the Securities with Underwriters its written opinion addressed to the NYSEUnderwriters, and such counsel has no reason to believe that dated 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 beClosing Date, 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 form 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 substance reasonably satisfactory to the Representatives for matters not governed by New York law and may rely as to matters Representatives, substantially in the form 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.Annex II hereto;
(ed) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Company’s Treasurer or any Managing Director or Vice President an executive officer of the Company with specific knowledge about the Company’s financial and its Chief Financial Officer or its Treasureroperational matters reasonably satisfactory to the Representatives, dated the day of the Closing Date, to the effect that the signer of such certificate has 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, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company each Issuer 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, 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 no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Act has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since February 28, 2019, there shall not have occurred any event that would have a Material Adverse Effect or threatenedany development that would reasonably be expected to have a Material Adverse Effect, 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).
(xf) The Registration Statement does not contain any untrue statement of a material fact or omit Company shall have requested and caused KPMG LLP to state any material fact required have furnished to be stated therein or necessary to make the statements therein not misleadingUnderwriters, (y) at 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, Execution Time 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 at the Closing Date, a nationally recognized firm letters (which may refer to letters previously delivered to one or more of independent public accountants shall have furnished to the Representatives a letterUnderwriters), dated respectively as of the day Execution Time and as of the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and in each case in form and substance satisfactory to the Representatives, stating Representatives containing statements and information of the type customarily included in effect that:
(i) In their opinion, accountants “comfort letters” to underwriters with respect to the consolidated financial statements of the Company and its subsidiaries, certain financial information contained or incorporated by reference in the Disclosure Package and the supporting schedulesFinal Prospectus.
(g) Subsequent to the Execution Time or, included if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus and audited by them comply as to form (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease beyond that reported in all material respects with the applicable accounting requirements paragraph 5 or 6 of the Securities Act and the Exchange Act and the related published rules and regulations thereunder.
letter or letters referred to in paragraph (f) of this Section 6 or (ii) On any change, or any development involving a prospective change, in or affecting the basis of a reading of the unaudited consolidated condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariesSubsidiaries taken as a whole, if any, included whether or not arising from transactions in the Registration Statement ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus and (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 latest unaudited consolidated financial statements made available Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale 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) 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 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.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(j) The Company shall have furnished to the Representatives, at the Execution Time, a certificate of the Company, signed by the Company’s general counsel, Treasurer or an executive officer of the Company with specific knowledge about the subject matter thereof, in form and substance reasonably satisfactory to the Representatives, and such certificate shall have been reaffirmed as of the Closing Date.
(k) 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 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 6 shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Constellation Brands, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Indenture Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and, such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Shares conform in all material respects to the descriptions description 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 if 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 Shares are to be listed on the NYSE[ ] Stock Exchange, 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 Shares with the NYSE, [ ] Stock Exchange and such counsel has received no reason to believe information stating that the Securities Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution.;
(xivi) The Named Subsidiary such counsel 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 without knowledge that (1) there 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 action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries which would affect the subject matter subsidiaries, of this Agreement or is a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(vii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceeding for that purpose has been instituted or threatened; and correctly summarized the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein. Such opinion shall also contain a statement that although , 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 and regulations of the Commission thereunder;
(viii) this Agreement and the Pricing Agreement have been duly authorized, executed and delivered by the Company and each constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for 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, state securities or insurance laws of any jurisdiction in the United States in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Shares, 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 of, or constitute a default under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (2) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement; and
(xii) the Initial Shares, [and any Option Shares as to which the option granted in Section 2(c) has been exercised] have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and does not assume any assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina or the United States, or the General Corporation Law of the State of Delaware, to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesInitial Shares, the Pricing Agreement, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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 Prospectusspecific items for which representations are requested below, nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the common stock or the consolidated long-term debt (other than scheduled repayments of such debt) of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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.
(Cii) (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 for the period subsequent to from the date of the most recent latest available 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 data to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 five business days prior to the date delivery of the such letter, there was any decrease change in the capital common stock or additional paid-in capital, or increase in the consolidated long-term indebtedness debt (other than scheduled repayments of such debt) of the Company and its subsidiariesthe subsidiaries on a consolidated basis, as compared except in all instances for changes or decreases which the Registration Statement and Final Prospectus discloses have occurred or may occur, or PricewaterhouseCoopers LLP shall state any specific changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers LLP has carried out certain other specified procedures, not constituting an audit, with the amounts shown in the most recent consolidated statement of respect to certain amounts, percentages and financial condition of the Company and its subsidiaries information which are included or incorporated by reference in the Registration Statement and Final Prospectus and which are specified by the Final Prospectus; except Representatives and agreed to by PricewaterhouseCoopers LLP, and has found such amounts, percentages and financial information to be in all instances for increases or decreases set forth in such letter, in which case agreement with the letter shall be arele
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy in all material respects of any material statements made in any certificates, the opinions, affidavits, written statements certificates or letters furnished to the Representatives you or to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (", P.A., counsel for the Underwriters' Counsel") , pursuant to this Section 6the provisions hereof, to the performance by the Company in all material respects 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) a. No stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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) b. The Company shall have furnished to the Representatives Underwriters the opinion opinion, dated the Closing Date, of a Deputy General ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Vice President and Corporate Counsel or the Chief Legal Officer for the Company, in substantially the form attached as EXHIBIT A hereto.
c. The Company shall have furnished to the Underwriters the opinion, 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 authorizedStroock & Stroock & ▇▇▇▇▇ LLP, executed and delivered by counsel for the Company, has been duly qualified under in substantially 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 dealingform attached as EXHIBIT B hereto.
(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 d. All proceedings taken in connection with the purchase and distribution sale of the Securities by Notes as herein contemplated shall be reasonably satisfactory in form and substance to you and to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., counsel for 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 Underwriters shall have received from Underwriters' Counsel counsel for the Underwriters such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, the Registration Statement, the Final Prospectus and other related matters as the Representatives Underwriters 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) e. The Company shall have furnished to the Representatives Underwriters a certificate of its the Company, signed by the Chief Executive Officer, its President Officer or any Managing Director a Senior or Executive Vice President and its Chief Financial Officer the principal financial or its Treasureraccounting officer or Treasurer of the Company, dated the day of the Closing Date, to the effect thatthat 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 after due inquiryknowledge:
(i) The 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, Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.;
(ii) No . no stop order suspending the effectiveness of the Registration Statement, as amended, and no order directed at any document incorporated by reference in the Registration Statement or the Final Prospectus or any amendment or supplement thereto has been issued issued, and no proceedings for that purpose have been instituted or threatened.threatened or, to the best of the Company's knowledge, are contemplated by the Commission; and
(x) The Registration Statement does not contain any untrue statement iii. since the date of a material fact the most recent financial statements included or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (y) incorporated by reference in the Final Prospectus does not contain Prospectus, there has been no material adverse change, or any untrue statement of development involving a prospective material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinadverse change, in the light condition (financial or otherwise), management, net worth, or results of operations of the circumstances under which they were madeCompany and its subsidiaries, considered as a whole, whether or not misleadingarising from transactions in the ordinary course of business, and (z) since the effective date of the Registration Statement there has not occurred any event required to be except as set forth in an amended or supplemented prospectus which has not been so set forth. 14contemplated in the Final Prospectus.
(g) At the Closing Date, a nationally recognized firm of independent public accountants f. KPMG Peat Marwick LLP shall have furnished to the Representatives Underwriters a letterletter or letters (which may refer to letters previously delivered to one or more of the Underwriters), dated the day of the Closing Datedate hereof, 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 RepresentativesUnderwriters, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) i. They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
ii. In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 regulations thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(ii) iii. 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 ) consisting of:
(1) Reading the minutes of the meetings of the directors shareholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇, the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter; and
(2) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention as a result of the foregoing procedures that caused them to believe that:
(a) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference in the Registration Statement and the Prospectus or (ii) for the period from the date of the latest available financial data to a specified date not more than five business days prior to the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and the subsidiaries on a consolidated basis, except in all instances for changes or decreases which the Registration Statement and Prospectus discloses have occurred or may occur, or KPMG Peat Marwick LLP shall state any specific changes or decreases.
iv. The letter shall also state that KPMG Peat Marwick LLP has carried out certain other specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included or incorporated by reference in the Registration Statement and Prospectus and which are specified by the Underwriters and agreed to by KPMG Peat Marwick LLP, and has found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and its subsidiariessubsidiaries identified in such letter. In addition, as on the Closing Date, KPMG Peat Marwick LLP shall have furnished to transactions and events subsequent to the Underwriters a letter or letters, dated the date of this Agreement, in form and substance satisfactory to the most recent audited consolidated financial statements included Underwriters, to the effect set forth in this paragraph (f) and in SCHEDULE I hereto.
g. Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus, nothing came to their attention that caused them to believe that:
there shall not have been (Ai) any material modifications should be made change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 5 or (ii) any change, in or affecting the unaudited consolidated financial statements earnings, business or properties of the Company and its subsidiariessubsidiaries the effect of which, if anyin any case referred to in clause (i) or (ii) above, included is, in the Registration Statement judgment of the Underwriters, so material and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering or the delivery 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 Notes as contemplated by the Registration Statement and the Final Prospectus.
(C) (I) 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. If any of the latest date 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 which 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 Underwriters 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 Underwriters. Notice of such cancellation shall be given to the Company and its subsidiaries have monthly financial statements, there was any decrease in the capital stock, additional paid-writing or by telephone or facsimile transmission confirmed 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 awriting.
Appears in 1 contract
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 Company contained herein as of the date hereof and Applicable Time, the Closing DateDate and any Option Closing Date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Preliminary Final Prospectus and the Final Prospectus, and any supplement thereto, 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 pursuant to within the applicable time periods prescribed for such filings by Rule 424 not later than 5:00 p.m., New York City time, on 433; and the second business day following the date of this Agreement or such later date Registration Statement is effective and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or suspending the qualification of the Indenture, any notice that would prevent its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(cb) 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.[Reserved]
(dc) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer requested and caused ▇▇▇▇▇▇▇ Coie LLP, United States counsel for the Company, to have furnished to the Representative their opinion, dated the day of Closing Date or the Option Closing Date, as the case may be, and addressed to the Representative, to the effect that:
(i) The Company Registration Statement became effective upon its filing with the Commission. To such counsel’s knowledge, no stop order suspending effectiveness of the Registration Statement has been duly organized and is validly existing and in good standing issued under the laws Act, and no proceedings for this purpose have been instituted or are pending or threatened by the Commission. Any required filing of the jurisdiction Preliminary Final Prospectus and the Final Prospectus and any supplement thereto pursuant to Rule 424(b) under the Act has been made in the manner and within the time period required by Rule 424(b) (without reference to 424(b)(8)). Without independent verification of the factual accuracy, completeness or fairness of any statements made in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus each (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need express no opinion), appears on its face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder;
(ii) The statements set forth in the 2013 Annual Report incorporated by reference into the Registration Statement, Preliminary Final Prospectus and the Final Prospectus under the caption “Risk Factors—Tax Risks—We, or any of our subsidiaries, may become subject to income tax in jurisdictions in which we are organized or operate, including the United States, Canada and Hong Kong, which would reduce our earnings and potentially cause certain shareholders to be subject to tax in such jurisdictions,” and “Risk Factors—Tax Risks—U.S. tax authorities could treat us as a “passive foreign investment company,” which could have adverse U.S. federal income tax consequences to U.S. shareholders.” insofar as such statements summarize legal matters discussed therein, are, in all material respects, accurate summaries of such legal matters; and the description of the statutes and regulations set forth in the Preliminary Final Prospectus and the Final Prospectus under the caption “Business—Environmental and Other Regulations—United States,” accurately describes in all material respects the portions of the statutes and regulations addressed thereby; provided, however, that such counsel need express no opinion with respect to any laws other than those of the United States;
(iii) The statements in the Preliminary Final Prospectus and the Final Prospectus under the captions “Business—Taxation of the Company—United States Taxation” and “Material United States Federal Income Tax Considerations,” with respect to legal matters or legal conclusions, in all material respects, is an accurate discussion of the material U.S. federal income tax considerations addressed therein (we do not opine or comment on the representations and statements of fact of the Company included in such discussion.);
(iv) Insofar as matters of United States Federal law are concerned, to such counsel’s knowledge, (i) there are no legal or governmental proceedings pending or threatened against the Company or to which the Company is a party or to which any of its incorporation with all requisite corporate power properties is subject that are required to be described in the Registration Statement, the Preliminary Final Prospectus and authority the Final Prospectus but are not so described as required and (ii) there are no agreements, contracts, indentures, leases or other documents or instruments that are required to own be described in the Registration Statement, the Preliminary Final Prospectus or the Final Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(v) The Company is not, and operate its properties immediately upon receipt of payment for the Securities, and to conduct its business the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(vi) All consents, approvals, authorizations or other orders of, or registrations or filings on the part of the Company with any United States federal governmental or regulatory authority required for the issuance of the Securities and the consummation of the transactions contemplated in this Agreement, the Preliminary Final Prospectus and the Final Prospectus have been made or obtained, or will be effective as of the date of the opinion;
(vii) Without independent verification of the factual accuracy, completeness or fairness of any statements made therein, the documents incorporated or deemed to be incorporated by reference into the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, when each became effective or was filed with the Commission, as the case may be, each (except for the financial statements and financial schedules, and other financial and statistical information included therein, as to which such counsel need express no opinion), appears on its face to be appropriately responsive in all material respects to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder;
(viii) Neither the issue and sale of the Securities nor the fulfillment of the terms thereof will (i) result in a breach or the imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement or instrument filed as an exhibit to the Registration Statement (including any document filed as an exhibit to any document incorporated by reference into the Registration Statement) to which the Company is a party or bound or to which its property is subject, which breaches or impositions of such lien, charge or encumbrance would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; or (ii) violate any generally applicable statute, law, rule or regulation (other than U.S. federal securities, state or foreign securities or blue sky or anti-fraud statutes, laws, rules or regulations, laws and regulations relating to commodity (and other) futures and indices and other similar instruments, and the rules and regulations of FINRA), or any judgment, order or decree to the knowledge of such counsel applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties, which violations would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and
(ix) Except as disclosed in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, to the knowledge of such counsel, no holders of securities of the Company have current rights to the registration of such securities under the Registration Statement.
(iix) The Indenture has been duly qualified under the Trust Indenture Act. Assuming that each of the Base Indenture and the Supplemental Indenture has been duly authorized, executed and delivered by the Company, the Indenture constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(iiixi) 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 Assuming 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 Company and performance of this Agreement and any Delayed Delivery Contracts authenticated by the Company will not conflict withTrustee, or result in the creation or imposition of any material lien, charge or encumbrance upon any Securities constitute valid and legally binding obligations of the assets Company, enforceable in accordance with their terms, entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). In addition, such counsel shall state that, such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Underwriters and representatives of the independent auditors 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 at which the Company or its Named Subsidiary is a party or is bound, or result in a violation contents 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 Preliminary 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 thereinany amendments or supplements thereto were discussed. Such opinion counsel shall also contain a statement that state that, although such counsel is not passing upon and does not assume any assumes no responsibility for the factual accuracy, completeness or fairness of the any statements contained in the Registration Statement and the Final Prospectus (except other than as to those matters stated set forth in paragraph (ii) of and (iii) above, subject to the assumptions, exclusions and qualifications set forth in such counsel’s opinion), such counsel has no reason to believe that ) made in (ia) the Registration StatementStatement or any amendment thereto, (b) the Preliminary Final Prospectus or any amendment or supplement thereto, (c) the Final Prospectus or any amendment or supplement thereto, or (d) the documents incorporated by reference in the Registration Statement or any further amendment or supplement thereto, nothing has come to such counsel’s attention that causes such counsel to believe that:
a. the Registration Statement or the prospectus included therein (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as of its effective date, most recent 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) or
b. the Final Prospectus does (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not contain comment) as of its date, or as amended or supplemented, if applicable, as of the Closing Date or the Option Closing Date, as the case may be, contained or contains any untrue statement of a material fact or omit omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, or
c. the Disclosure Package (except for any financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as of its date or as amended or supplemented, if applicable, as of the Applicable Time contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Company and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (zC) since state that their opinion is limited to United States Federal laws. References to the effective date of Final Prospectus in this paragraph (c) shall also include any supplements thereto at the Registration Statement there has not occurred any event required to be set forth in an amended Closing Date or supplemented prospectus which has not been so set forth. 14
(g) At the Option Closing Date, a nationally recognized firm of independent public accountants as the case may be.
(d) The Company shall have requested and caused Farris, Vaughan, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Canadian tax counsel for the Company, to have furnished to the Representatives a letterRepresentative their opinion, dated the day of Closing Date or the Option Closing Date, confirming that they are independent auditors with respect as the case may be, and addressed to the Company within the meaning of the Securities Act and in form and substance satisfactory Representative, to the Representatives, stating in effect that:
(i) In their opinion, the consolidated financial All statements of legal conclusions contained under the Company and its subsidiaries, and the supporting schedules, included caption “Non-United States Tax Considerations—Canadian Federal Income Tax Considerations” in the Registration Statement Preliminary Final Prospectus and the Final Prospectus are correct and audited by them comply accurate with respect to the matters set forth therein as of the Closing Date or the Option Closing Date, as the case may be, and such counsel is of the opinion that the statements under the caption “Non-United States Tax Considerations—Canadian Federal Income Tax Considerations” in the Preliminary Final Prospectus and the Final Prospectus, with respect to those matters as to form which no legal conclusions are provided, are an accurate discussion of the Canadian federal income tax matters applicable to those holders who acquire Securities in all material respects connection with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder.offering thereof;
(ii) On the basis of a reading of the unaudited consolidated financial The statements of the Company and its subsidiaries, if any, included set forth in the Registration Statement Preliminary Final Prospectus and the Final Prospectus and under the caption “Business—Taxation of the latest unaudited consolidated financial statements Company—Canadian Taxation” accurately describe the Canadian income tax matters described therein; provided, however, with respect to the opinion referred to in the immediately preceding sentence only, such counsel need express no opinion or comment on any representation or statement of fact, intention or assumption, or of risk (except to the extent of any conclusion of law set out under such caption), or of a general nature (except to the extent of any conclusion of law set out under such caption), made available by or on behalf of the Company in the Preliminary Final Prospectus or the Final Prospectus including, but without restricting the generality of the forgoing, the following statements under such caption: “It is not our current intention that our central management and control be exercised in Canada”; “Based on our operations, we do not believe that we are, nor do we expect to be, resident in Canada for purposes of the Canada Tax Act, and we intend that our affairs will be conducted and operated in a manner such that we do not become a resident of Canada under the Canada Tax Act”; “A Canadian resident corporation that carries on an international shipping business, as described in the previous sentence, in the Republic of The ▇▇▇▇▇▇, carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading ▇▇ Islands is exempt from income tax under the current laws of the minutes Republic of the meetings of the directors of the Company and The ▇▇▇▇▇▇▇▇ Islands”; “We expect that we will qualify for these statutory exemptions under the Canada Tax Act. Based on our operations, and inquiries of certain officials we do not believe that we are, nor do we expect to be, carrying on a business in Canada for purposes of the Company Canada Tax Act other than a business that would provide us with these statutory exemptions from Canadian income tax” and its subsidiaries“Based on our operations, who have responsibility we do not believe that the Draft Proposals would, if enacted into law in the form currently proposed, result in us becoming resident in Canada for financial and accounting matters purposes of the Company and its subsidiariesCanada Tax Act, as nor result in our business income becoming subject to transactions and events subsequent to the date Canadian income tax”. The opinion 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 counsel 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 atwo preceding paragraphs m
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder, as to purchase the Securities Notes to be delivered at each Delivery Date, shall be subject subject, in their discretion, to the accuracy in condition that all material respects of the representations and warranties on the part and other statements of the Company contained herein are, at and as of the date hereof and each Delivery Date, true and correct and the Closing Datecondition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions, unless any such condition is waived in writing by the Representative:
(a) The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); each Issuer Free Writing Prospectus shall have been filed with the Commission if required, in the manner and within the time period required by Rule 433; no stop order suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act shall have been initiated or, to the accuracy knowledge of any material statements made in any certificatesthe Company, opinionsthreatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) On each Delivery Date, affidavits, written statements or letters furnished to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you an opinion or opinions, dated such dates, with respect to the issuance and sale of the Notes on each such Delivery Date, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) On each Delivery Date, the Company shall have furnished to you an opinion and negative assurance statement of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company, addressed to the performance by Underwriters and dated such Delivery Date, in the form set forth in Exhibit A hereto.
(d) On each Delivery Date, the Company shall furnish to you an opinion of its respective obligations hereunder and the General Counsel of the Company, addressed to the following additional conditions:Underwriters and dated such Delivery Date, in the form set forth in Exhibit B hereto.
(ae) The Final Prospectus On each Delivery Date, the Company shall have been filed with furnished to you an opinion of ▇▇▇▇▇ & Overy LLP, Investment Company Act counsel for the Commission pursuant Company, addressed to Rule 424 not later than 5:00 p.m.the Underwriters and dated such Delivery Date, New York City time, on in the second business day following form set forth in Exhibit C hereto.
(f) On the date of this Agreement and also at each Delivery Date, PricewaterhouseCoopers LLC shall have furnished to you a letter or such later date letters, dated the respective dates of delivery thereof, in form and time as shall be consented substance satisfactory to the Representative, containing statements and information of the type ordinarily included in writing accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company contained or incorporated by the Representatives.
(b) No order suspending the effectiveness of reference in the Registration Statement, as amended from time to time, or suspending the qualification of Disclosure Package and 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 RepresentativesProspectus.
(cg) Since Subsequent to the respective dates as earlier of which information is given (A) the Initial Time of Sale and (B) the execution and delivery of this Agreement, no event or condition of a type described 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 (gSection 1(f) of this Section 6 whichAgreement shall have occurred or shall exist, which event or condition is not described in the Disclosure Package Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives, Representative makes it impracticable or inadvisable to proceed with the offering and public offering, sale or delivery of the Securities as Notes at the applicable Delivery Date, on the terms and in the manner contemplated by this Agreement, the Registration Statement Disclosure Package and the Final Prospectus.
(dh) The On each Delivery Date the Company shall have furnished to the Representatives the opinion you a certificate of a Deputy General Counsel or the Chief Legal Executive, Chief Financial or Chief Accounting Officer for of the Company, dated satisfactory to you as to the day accuracy of the Closing representations and warranties of the Company herein at and as of the date hereof and such Delivery Date, as to the effect that:performance by the Company of all of its obligations hereunder to be performed at or prior to such Delivery Date, as to the matters set forth in subsections (a), (g) and (h) of this Section 8 and as to such other matters as you may reasonably and timely request in writing.
(i) The On each Delivery Date, the Company has been duly organized and is validly existing and in good standing under shall deliver to the laws of the jurisdiction Representative a certificate of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business Chief Financial Officer, dated as described of such Delivery Date in the Final Prospectusform attached as Exhibit D hereto.
(iij) The Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) The Indenture has been You shall have received copies, 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 other party or parties thereto, of the TrusteeIndenture.
(ek) The Representatives You shall have received from Underwriters' Counsel on and as of such opinion or opinionsDelivery Date, dated the day satisfactory evidence of the Closing good standing of the Company and the Significant Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as you may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(l) No action shall have been taken and 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, at such Delivery Date, with respect prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, at such Delivery Date, prevent the issuance or sale of the Notes.
(m) The Notes shall have been made eligible for clearance and settlement through The Depository Trust Company.
(n) There shall exist no event or condition which would, following the passage of time, constitute a default or an event of default under the Notes or the Indenture.
(o) On or before such Delivery Date, the Representative and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the SecuritiesNotes as contemplated herein, or in order to evidence 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 accuracy 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 warranties, or the satisfaction of any of the Company conditions or agreements, herein contained. If any of the conditions specified in this Agreement are true and correct Section 8 shall not have been fulfilled in all material respects on when and as provided in this Agreement, or if any of the Closing Date with the same effect as if made on the Closing Date, opinions and the Company has complied with certificates mentioned above or elsewhere in this Agreement shall not be in 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 respects reasonably satisfactory in form and substance satisfactory to the RepresentativesRepresentative and its counsel, stating in effect that:
(i) In their opinion, the consolidated financial statements this Agreement and all obligations of the Company and its subsidiariesUnderwriters hereunder may be canceled at, and or at any time prior to, each Delivery Date by the supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as Underwriters. Notice of such cancellation shall be given 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 earningswriting, or increase in long-term indebtedness by telephone or facsimile (with written confirmation 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 areceipt).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; <Page> 6
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and <Page> 7
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, 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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or complied with all the <Page> 8 agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by <Page> 9 reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of the statements of the Company made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission;
(ii) the Company shall have filed the preliminary prospectus and the Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such rule or, to the extent applicable, under Rule 164(b) under the Securities Act; and
(iv) The Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in each jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned beneficially, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances with respect thereto;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company or any of its subsidiaries required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the statements made in the Base Prospectus under the headings “Description of Preferred Stock” and Description of Depositary Shares,” as supplemented, amended and/or superseded by the statements in the final prospectus supplement for the Shares dated the date of this Agreement under the headings “Description of the Preferred Stock” and “Description of the Depositary Shares,” insofar as they purport to constitute summaries of the terms of the Deposit Agreement, the Depositary Shares and the Preferred Stock, constitute accurate summaries in all material respects;
(vi) the Registration Statement has been declared effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any certificatesproceeding for that purpose has been instituted or threatened; and the Registration Statement, opinionsthe Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements, affidavitssupporting schedules, written statements footnotes and other financial, accounting and statistical information contained therein or letters furnished incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the Representatives application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities, insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, will be entitled to the rights under, and the benefits of, the Deposit Agreement; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) none of the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement and the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Amended and Restated Certificate of Incorporation or Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any U.S. court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus, including any document incorporated by reference therein, consisting of financial statements, supporting schedules, footnotes and other financial, accounting and statistical information or statements in the Disclosure Package or the Prospectus concerning the securities and other commercial laws of countries or jurisdictions other than the United States, and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), nothing has come to its attention that has caused it to believe that such remaining portions of the Registration Statement or any amendment thereto, insofar as it relates to the offering of the Shares, as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements, supporting schedules, footnotes and other financial, accounting and statistical information, the Disclosure Package, insofar as it relates to the offering of the Shares, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, insofar as it relates to the offering of the Shares, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of New York and North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 counsel 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 SecuritiesInitial Shares, the Registration Statement, the Final Disclosure Package and the Prospectus and any other related matters as the Representatives 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its Chief Executive Officerthe Company, its signed by any Senior Vice President or Treasurer or any Managing Director or Vice President and its Chief Financial Officer or its Treasurerother authorized officer of the Company, dated the day of the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and he or she is without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company contained in Section 1 of this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatened.threatened by the Commission;
(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 (ziii) 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 Disclosure Package 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5Prospectus, there has been any decrease in such amounts as compared with the amounts shown material adverse change or any development involving a prospective material adverse change in the most recent consolidated condition (financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three or other), earnings, 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 properties of the Company and its subsidiaries, taken as compared with the amounts shown a whole, whether or not arising from transactions in the most recent consolidated statement ordinary course of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; business, except in all instances for increases or decreases as set forth in such letteror contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding is pending to restrain or enjoin the issuance or delivery of the Shares, or which in any way affects the validity of the Shares.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to one or more letters previously delivered to the Representative), dated as of the date of this Agreement, in which case form and substance satisfactory to the letter shall be aRepresentative, confirming that the response, if any, to Item 1
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Companies contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Companies made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Companies of their obligations hereunder and to the following additional conditions (provided it is understood and agreed that the offering of the Notes in Canada by the Underwriters as contemplated herein shall be made in the provinces of Canada on a private placement basis in accordance with applicable exemptions from the prospectus requirements of applicable Canadian Securities Laws):
(a) The Final Prospectus, and any supplement thereto, 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 Companies 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 of the Act shall have been instituted or threatened.
(b) The Representatives or shall have received (i) the opinion and negative assurance letter of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, outside counsel for the Companies, dated the Closing Date and addressed to the Representatives, to the effect as set forth on Exhibit A hereto, (ii) the opinion of K▇▇▇ ▇▇▇▇▇▇▇▇, Esq., the Chief Legal Officer of Equinix, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit B hereto, and (iii) the opinion of S▇▇▇▇▇▇▇ & Worcester LLP, special tax counsel for the Companies, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇B▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 the opinion of a Deputy General Counsel or the Chief Legal Officer counsel for the CompanyUnderwriters, such opinion and negative assurance letter, dated the day of the Closing Date, Date and addressed 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 DateRepresentatives, 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 Companies shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company Representatives shall have received the favorable opinion of B▇▇▇▇, C▇▇▇▇▇▇ & G▇▇▇▇▇▇ LLP, Canadian counsel for the Issuer, dated the Closing Date and addressed to the Representatives in form and substance reasonably acceptable to the Representatives.
(e) The Companies shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Companies, its President signed by, in the case of Equinix, the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of Equinix and, in the case of the Issuer, an authorized signatory, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company Companies 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, Date and the Company has Companies have complied with all the agreements and satisfied all the conditions on its part each of their respective parts to be performed or satisfied at or prior to the Closing Date.;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or or, to any of the Companies’ knowledge, threatened.;
(xiii) The Registration Statement does not contain no order, ruling or decision of any untrue statement of a material fact Canadian federal or omit to state provincial court or securities regulatory authority restricting or ceasing trading in 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, securities of the Issuer or suspending or preventing the use of the Preliminary Canadian Offering Memorandum or the Canadian Offering Memorandum has been issued and no notification from any Canadian federal or provincial court or securities regulatory authority of the institution or threatening of any proceeding for such purpose has been received; and
(ziv) 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 Disclosure Package, the Final Prospectus and extending through the latest date Canadian Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or other), business, properties or results of operation of Equinix 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 Final Prospectus and the Canadian Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from PricewaterhouseCoopers, LLP (US), at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of which the Company Execution Time and its subsidiaries have monthly financial statementsas of the Closing Date and each in form and substance satisfactory to the Representatives, there was a consolidated net loss or (III) containing statements and information of the type customarily included in accountants’ “comfort” letters to underwriters with respect to the amounts financial statements and certain financial information of net capital Equinix and its subsidiaries contained or excess net capital incorporated by reference in each of the Disclosure Package, the Final Prospectus and the Canadian Offering Memorandum, confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to Equinix and its subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the PCAOB; provided that the “comfort” letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(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 Final Prospectus and the Canadian Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of Equinix 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 Final Prospectus and the Canadian Offering Memorandum (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, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package, the Final Prospectus and the Canadian Offering Memorandum (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Companies’ debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Companies shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Notes shall be eligible for clearance and settlement through the facilities of CDS. 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 Companies 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 S▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5& B▇▇▇▇▇▇▇ LLP, there has been any decrease in such amounts as compared with counsel for the amounts shown in Underwriters, at 2▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on 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 aClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy in all material respects of and compliance with the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing DateTime, to the accuracy of any material the statements of the Company’s officers made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Director — Assistant General Counsel of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters' Counsel") pursuant to this Section 6, together with signed or reproduced copies of such letter for each of the other Underwriters to the performance by effect set forth in Exhibit B hereto.
(3) An opinion, dated the Company day of its respective obligations hereunder the Closing Time, of Debevoise & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for U.S. Bank Trust National Association, as the Trustee, Subordination Agent and Loan Trustee under the Indentures and Paying Agent in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit D hereto.
(5) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for U.S. Bank National Association, as the Escrow Agent in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit E hereto.
(6) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., tax counsel for the Trustee, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F-1 hereto.
(7) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Trustee, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F-2 hereto.
(8) An opinion, dated the day of the Closing Time, of Christian de Le Hir, counsel for the Liquidity Provider, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit G hereto.
(9) An opinion, dated the day of the Closing Time, of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Liquidity Provider, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit H hereto.
(10) An opinion, dated the day of the Closing Time, of Christian de Le Hir, in-house counsel for the Depositary, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit I hereto.
(11) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇ ▇▇▇▇ LLP, New York counsel for the Depositary, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit J hereto and to such further effect as counsel to the following additional conditions:Underwriters may reasonably request.
(a12) An opinion, dated the day of the Closing Time, from Shearman & Sterling LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as you may reasonably require.
(b) 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 424(b) under the second business day following Act within the date of this Agreement or applicable time period prescribed for such later date and time as shall be consented to in writing filing 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 rules 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 regulations 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 termsSection 3(a) hereof; and the Securities have been duly authorized, executed and issued final term sheet contemplated by the CompanySection 3(b) hereof, 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 any 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 material 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.
(viiiRule 433(d) The Registration Statement has become effective under the Securities Act, and, to shall have been filed with the best of Commission within the knowledge of applicable time periods prescribed for such counsel, filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement has or any part thereof shall have been issued and no proceeding for that purpose is pending shall have been initiated or, to the knowledge of the Company, threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or, to the knowledge of the Company, threatened by the Commission.; and all requests for additional information by the Commission shall have been complied with to your reasonable satisfaction;
(ixc) The Registration StatementOn or after the date hereof, there shall not have been (i) any change or decrease, specified in the Final Prospectus and each amendment thereof letters referred to in paragraph (d) of this Section 4 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 thereinii) 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 distributionany change, or any development involving a prospective change, in or affecting 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 business or 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 subsidiaries, taken as a foreign corporationwhole, is the effect of which, in good standing any case referred to in clause (i) or (ii) above, is, in your reasonable judgment, so material and is duly registered adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Pricing Disclosure Package and the Prospectus; and you shall have received a broker-dealercertificate of the President, brokeran Executive Vice President, dealer a Senior Vice President or investment advisora Vice President of the Company, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, in the case may beof clause (ii) above, 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 subsidiaries, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company contained in the Operative Documents are true and correct with the same force and effect as a wholethough made at such Closing Time, and as to such other matters as you may reasonably request.
(xiid) All At the outstanding shares of capital stock time 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 execution of this Agreement or is required to be disclosed in and also at 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 accuracyClosing Time, 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) Ernst & Young LLP shall have furnished to you a letter or letters, dated the Registration Statement, as respective dates 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 thereindelivery thereof, in the light form and substance reasonably satisfactory to you, together with signed or reproduced copies of such letter or letters for each of the circumstances under which they were made, not misleading (except that no opinion need be expressed as other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the Underwriters with respect to the financial statements or other and certain financial or statistical data or information contained in the Form T-1 included or incorporated by reference therein). In rendering such opinionPricing Disclosure Package and the Prospectus, such counsel may rely upon opinions and (ii) you shall have received a certificate of local counsel satisfactory to the Representatives for matters not governed by New York law ▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President and may rely as to matters of fact, to the extent he deems proper, upon certificates or affidavits of officers Chief Financial Officer of the Company, dated the Trustee and public officials. Such counsel may rely on a certificate respective dates thereof, substantially in the form of the Trustee with respect to the execution of the Securities by the Company and the authentication thereof by the TrusteeExhibit K hereto.
(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 you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representatives purpose of enabling such counsel to pass upon the matters to be covered by the opinions required to be delivered under subsections (a)(11) and (a)(12) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a certificate of its Chief Executive Officerletter from such Appraiser, its President or any Managing Director or Vice President addressed to the Company and its Chief Financial Officer or its Treasurer, dated the day of the Closing DateTime, to the effect that, to the best confirming that such Appraiser and each of their knowledge after due inquiry:
its directors and officers (i) The representations and warranties is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities by either nationally recognized statistical rating organization that is rating the Class A Certificates or Class B Certificates, as set forth in the Issuer Free Writing Prospectus used by the Underwriters to confirm sales, the form of which shall be agreed to between the Company and the Underwriters, and (ii) neither such nationally recognized statistical rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects reasonably satisfactory to you and your counsel. If any condition specified in this Agreement are true and correct in all material respects on Section shall not have been fulfilled when and as required to be fulfilled, other than by reason of the Closing Date with the same effect as if made on the Closing Dateany default by any Underwriter, and such failure to fulfill a condition may be waived by you, or this Agreement may be terminated by you by notice to the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at any time 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 misleadingTime, and (z) since the effective date such termination shall be without liability of the Registration Statement there has not occurred any event required party to be set forth any other party, except as provided in an amended or supplemented prospectus Sections 5, 7 and 10 hereof, which has not been so set forth. 14
(g) At the Closing Date, a nationally recognized firm of independent public accountants provisions 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 remain 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 thereundernotwithstanding such termination.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 sky, securities or insurance or similar laws of any jurisdiction the United States in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, 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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatened.threatened by the Commission; and
(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 (ziii) since the effective date of the Registration Statement most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not occurred any event required to be arising from transactions in the ordinary course of business, except as set forth in an amended or supplemented prospectus which has not been so set forthcontemplated in the Final Prospectus. 14<Page 8
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) the unaudited condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, do not comply as to form in all material respects with the <Page 9 applicable accounting requirements of the Exchange Act and the published rules and regulations thereunder;
(2) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 ;
(3) (i) at the applicable accounting requirements date of the Securities Act latest available interim financial data and at the published instructionsspecified date not more than five business days prior to the date of the delivery of such letter, rules and regulations thereunder.
there was any change in the capital stock or the long-term debt (Bother than scheduled repayments of such debt) the unaudited capsule information or any decreases in shareholders' equity 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 subsidiaries on a consolidated 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 latest balance sheet included or incorporated by reference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 aRegist
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares on each Closing Date pursuant to this Agreement shall be subject to to: (i) the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the date hereof hereof, as of the date of the Final Prospectus, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to such Closing Date and as of such Closing Date; (ii) the accuracy in all material respects of the statements of the Company and the Closing Date, to the accuracy of any material statements Selling Stockholders made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ provisions hereof; ("Underwriters' Counsel"iii) pursuant to this Section 6, to the performance in all material respects by each of the Company and the Selling Stockholders of its respective obligations hereunder hereunder; and to (iv) 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 stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or suspending the qualification of the Indenture, shall have been issued and be in effect effect, and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus and any amendment or otherwise) supplement thereto shall have been complied filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives Underwriters the opinion of a Deputy General Counsel or the Chief Legal Officer for the CompanyWilson Sonsini Goodrich & Rosati, dated the day Professional Corporation, counsel fo▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ of the ▇▇▇▇ Closing Date, to substantially in the effect that:form attached hereto as Exhibit A.
(ic) The Company has been duly organized and is validly existing and in good standing under Underwriters shall have received the laws opinion, dated as of the jurisdiction Firm Commitment Closing Date, of its incorporation Milbank, Tweed, Hadley & McCloy LLP, counsel for the Selling Stockholders, with all requisite corporate power and authority to own and operate its properties and to conduct its business respec▇ ▇▇ ▇he ▇▇▇▇ ▇f the United States, dated as described of such Closing Date, substantially in the Final Prospectus.form attached hereto as Exhibit B.
(iid) The Securities and Underwriters shall have received the Indenture conform in all material respects to certificate, dated as of the descriptions thereof contained Firm Commitment Closing Date, of Jean-Marc Vanstaen, curator for the bankruptcy estate of L&H, under th▇ ▇▇▇▇ ▇▇ the Kingdom of Belgium, dated as of such Closing Date, substantially 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 form attached hereto 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.Exhibit C.
(e) The Representatives Underwriters shall have received from Sidley Austin Brown & Wood LLP, counsel to the Underwriters' Counsel , such opinion or opinions▇▇▇▇▇▇▇▇, dated the day ▇▇ted ▇▇ of the such Closing Date, with respect to the issuance and sale of the SecuritiesFirm Shares or the Additional Shares, as the case may be, the Registration Statement, the Final Prospectus and other related matters as the Representatives Underwriters 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 Underwriters a certificate of its the Company, signed by the Chairman and Chief Executive Officer, its President Officer or any Managing Director or Vice the President and its Chief Financial Officer or its Treasurerthe principal financial officer of the Company, dated the day as of the such 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 after due inquiry:
(i) The the representations and warranties of the Company in this Agreement were true and correct in all material respects on and as of the date hereof and are true and correct in all material respects on and as of the such Closing Date with the same effect as if made on the Closing Datesuch 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 such Firm Commitment Closing Date.;
(ii) No no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and is currently in effect and no proceedings for that purpose have been instituted or, to the best of their knowledge, 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 threatenedother), 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 Final Prospectus.
(xg) On the date hereof and on the Closing Date, PWC shall have furnished to the Underwriters a letter or letters (which may refer to letters previously delivered to the Underwriters), dated as of such date, in form and substance satisfactory to the Underwriters.
(h) On the date hereof and on the Closing Date, KPMG Accountants, N.V. ("KPMG") shall have furnished to the Underwriters a letter or letters (which may refer to letters previously delivered to the Underwriters), dated as of such date, in form and substance satisfactory to the Underwriters.
(i) 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 paragraphs (g) and (h) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business or properties of the Company the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Firm Shares or the Additional Shares, as the case may be, as contemplated by the Registration Statement, the Final Prospectus and this Agreement.
(j) The Underwriters shall have received a certificate from each Selling Stockholder, signed by an authorized signatory of such Selling Stockholder, dated as of such Closing Date, to the effect that:
(i) the representations and warranties of such Selling Stockholder contained in Section 1(b) of this Agreement are true and correct in all respects with the same force and effect as though expressly made on and as of such Closing Date;
(ii) the information furnished in writing by such Selling Stockholder specifically for inclusion in the Registration Statement, as amended as of such Closing Date, or approved in writing by such Selling Stockholder for inclusion in the Registration Statement as so amended, does not contain include 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) and the information furnished in writing by such Selling Stockholder specifically for inclusion in the Final Prospectus, as amended or supplemented as of such Closing Date, or approved in writing by such Selling Stockholder for inclusion in the Final Prospectus as so amended and supplemented, does not contain include any untrue statement of a material fact or omit to state a any 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
(iii) such Selling Stockholder has complied with all conditions and (z) since the effective date of the Registration Statement there has not occurred any event required performed all covenants and agreements on its part to be set forth in an amended complied with, performed or supplemented prospectus which has not been so set forth. 14satisfied at or prior to such Closing Date.
(gk) At the Closing DateThe Underwriters shall have received from each Selling Stockholder a duly completed Form W-9, a nationally recognized firm signed by such Selling Stockholder or trustee of independent public accountants such Selling Stockholder, if applicable.
(l) The Company shall have furnished to the Representatives a letterUnderwriters such further information, dated certificates and documents as the day of the Closing Date, confirming Underwriters may reasonably request.
(m) The NASD has confirmed that they are independent auditors it has not raised any objection with respect to the Company within the meaning fairness and reasonableness of the Securities Act underwriting terms and arrangements.
(n) At the date of this Agreement, the Underwriters shall have received an agreement substantially in the form of Exhibit D hereto signed by the persons listed on Schedule C hereto.
(o) The Approval Orders shall not have been stayed, modified, reversed or amended. If any of the conditions specified in this Section 7 to be fulfilled as of or prior to the applicable Closing Date have not been so 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 to be delivered to the Underwriters as of or prior to such Closing Date shall not be in all material respects reasonably satisfactory in form and substance satisfactory to the RepresentativesUnderwriters and their counsel, stating in effect that:
(i) In their opinion, the consolidated financial statements all obligations of the Company and its subsidiariesUnderwriters hereunder may be canceled at, and or at any time prior to, such Closing Date by the supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as Representative. Notice of such cancellation shall be given 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 writing or by the Company and ▇▇▇▇▇▇, carrying out certain specified procedures (but not an audit telephone or telegraph confirmed 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 thereunderwriting.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Underwritten Shares on the Closing Date and the Option Shares on any Additional Closing Date, 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 Company contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or suspending any notice under Rule 401 (g)(2) under the qualification of the IndentureAct that would prevent its use, shall be in effect have been issued and no proceedings for such that purpose shall be pending before have been instituted 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 Commission; the Final Prospectus or otherwise) shall have been complied filed with the Commission pursuant to Rule 424(b) under the reasonable satisfaction Act not later than the close of business on the Representativessecond business day following the execution and delivery of this Agreement; and any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Act.
(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.
(di) The Company shall have furnished to the Representatives the opinion of a Deputy General ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Company Counsel or the Chief Legal Officer for of the Company, dated the day of the Closing Date or any Additional Closing Date, as the case may be, to the effect that:
(iA) The the Company has been duly organized incorporated and is a validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus.
(ii) The Securities Disclosure Package and the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) The Indenture has been , and is duly authorized, executed registered as a financial holding company and delivered by the Company, has been duly qualified a bank holding company under the Trust Indenture Bank Holding Company Act of 1956, as amended; each of ▇▇▇▇▇ Fargo Bank, National Association (“▇▇▇▇▇ Fargo Bank”) and constitutes Wachovia Bank, National Association (“Wachovia Bank”) is a legalnational banking association authorized to transact the business of banking under the National Bank Act of 1864, valid and binding instrument enforceable against the Company in accordance with its termsas amended; and the Securities have been duly authorized, executed WFC Holdings Corporation (“WFC Holdings” and issued by the Company, together with ▇▇▇▇▇ Fargo Bank 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 counselWachovia Bank, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(vii“Significant Subsidiaries”) 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 State 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 Delaware;
(B) each of the Company and its Named Subsidiary the Significant Subsidiaries is duly qualified to do business as a foreign corporation, and 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 requires such qualification wherein it owns or registration and leases any material properties or conducts any material business, except where the failure to so qualify or register would not have a any material adverse effect on upon the business, condition or properties of the Company and its subsidiaries subsidiaries, taken as a whole.;
(xiiC) All all of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ▇.▇.▇. §▇▇ in the case of ▇▇▇▇▇ Fargo Bank and Wachovia Bank) nonassessable, and are owned directly or indirectly by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances;
(D) the number and type of equity securities the Company is authorized to issue is as set forth in the Disclosure Package and the Final Prospectus; all the outstanding shares of capital stock of the Company's Named Subsidiary Company have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors' qualifying shares, are owned by assessable; the Company or a subsidiary capital stock of the Company free conforms in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and clear of any claims, liens, encumbrances and security interests.the Final Prospectus;
(xiiiE) Such counsel does not know of any litigation to such counsel’s knowledge, there are no legal or any governmental proceeding proceedings pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is are required to be disclosed in the Disclosure Package or the Final Prospectus which Prospectus, other than as disclosed therein, and there is not disclosed and correctly summarized therein. Such opinion shall also contain no contract or other document of a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness character required to be described or fairness of the statements contained referred to in the Registration Statement or required to be filed as an exhibit thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the description thereof or references thereto are correct;
(F) neither the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will result in a breach of, or constitute a default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order, law or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Company;
(G) the statements in the Final Prospectus (except as other than statements furnished in writing to those matters stated in paragraph (ii) the Company by or on behalf of an Underwriter through the Representatives, it being understood and agreed that the only such information furnished by any Underwriter consists of such opinion)information described as such in the Blood Letter) under the captions “Description of Common Stock”, and “Underwriting” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived;
(H) the Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the Shares have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares;
(I) this Agreement has been duly authorized, executed and delivered by the Company;
(J) no consent, approval, authorization or order of any court or government agency or body is required for 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 FINRA regulations in connection with the purchase and distribution of the Shares by the Underwriters; and
(K) such counsel has no reason to believe that (i) the Registration StatementDisclosure Package, as of its effective datethe Applicable Time, 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 other than the financial statements or and related notes and other financial or and financial reserve information and statistical and accounting data or the Form T-1 included or incorporated by reference contained therein, as to which such counsel need express no opinion). 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 Minnesota and the Delaware General Corporation Law or the United States, to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 apublic officials.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Underwritten Shares on the Closing Date and the Option Shares on any Additional Closing Date, 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 Company contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or suspending any notice under Rule 401(g)(2) under the qualification of the IndentureAct that would prevent its use, shall be in effect have been issued and no proceedings for such that purpose shall be pending before have been instituted 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 Commission; the Final Prospectus or otherwise) shall have been complied filed with the Commission pursuant to Rule 424(b) under the reasonable satisfaction Act not later than the close of business on the Representativessecond business day following the execution and delivery of this Agreement; and any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Act.
(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.
(di) The Company shall have furnished to the Representatives the opinion of a Deputy General ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Company Counsel or the Chief Legal Officer for of the Company, dated the day of the Closing Date or any Additional Closing Date, as the case may be, to the effect that:
(iA) The the Company has been duly organized incorporated and is a validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus.
(ii) The Securities Disclosure Package and the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) The Indenture has been , and is duly authorized, executed registered as a financial holding company and delivered by the Company, has been duly qualified a bank holding company under the Trust Indenture Bank Holding Company Act and constitutes of 1956, as amended; ▇▇▇▇▇ Fargo Bank, National Association (“▇▇▇▇▇ Fargo Bank”) is a legalnational banking association authorized to transact the business of banking under the National Bank Act of 1864, valid and binding instrument enforceable against the Company in accordance with its termsas amended; and the Securities have been duly authorized, executed WFC Holdings Corporation (“WFC Holdings” and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery in accordance together 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▇▇▇▇▇ Fargo Bank, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(vii“Significant Subsidiaries”) 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 State 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 Delaware;
(B) each of the Company and its Named Subsidiary the Significant Subsidiaries is duly qualified to do business as a foreign corporation, and 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 requires such qualification wherein it owns or registration and leases any material properties or conducts any material business, except where the failure to so qualify or register would not have a any material adverse effect on upon the business, condition or properties of the Company and its subsidiaries subsidiaries, taken as a whole.;
(xiiC) All all of the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ▇.▇.▇. §▇▇ in the case of ▇▇▇▇▇ Fargo Bank) nonassessable, and are owned directly or indirectly by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances;
(D) the number and type of equity securities the Company is authorized to issue is as set forth in the Disclosure Package and the Final Prospectus; all the outstanding shares of capital stock of the Company's Named Subsidiary Company have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors' qualifying shares, are owned by assessable; the Company or a subsidiary capital stock of the Company free conforms in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and clear of any claims, liens, encumbrances and security interests.the Final Prospectus;
(xiiiE) Such counsel does not know of any litigation to such counsel’s knowledge, there are no legal or any governmental proceeding proceedings pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is are required to be disclosed in the Disclosure Package or the Final Prospectus which Prospectus, other than as disclosed therein, and there is not disclosed and correctly summarized therein. Such opinion shall also contain no contract or other document of a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness character required to be described or fairness of the statements contained referred to in the Registration Statement or required to be filed as an exhibit thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the description thereof or references thereto are correct;
(F) neither the issue and sale of the Shares being delivered on the Closing Date or such Additional Closing Date, as the case may be, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will result in a breach of, or constitute a default under, any indenture or other agreement or instrument to which the Company or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Company’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or bound, the breach of which would have a material adverse effect on the financial condition of the Company and its subsidiaries, taken as a whole, or violate any order, law or regulation known to such counsel to be applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Company;
(G) the statements in the Final Prospectus (except as other than statements furnished in writing to those matters stated in paragraph (ii) the Company by or on behalf of an Underwriter through the Representatives, it being understood and agreed that the only such information furnished by any Underwriter consists of such opinion)information described as such in the Blood Letter) under the captions “Description of Common Stock”, and “Underwriting” insofar as they purport to summarize certain provisions of documents or laws specifically referred to therein, are accurate summaries of such provisions or laws or of the sources from which such summaries were derived;
(H) the Shares conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the Shares have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; and holders of outstanding shares of common stock of the Company are not entitled to statutory or contractual preemptive rights in connection with the issuance of the Shares;
(I) each of this Agreement and the Merger Agreement has been duly authorized, executed and delivered by the Company;
(J) no consent, approval, authorization or order of any court or government agency or body is required for 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 FINRA regulations in connection with the purchase and distribution of the Shares by the Underwriters; and
(K) such counsel has no reason to believe that (i) the Registration StatementDisclosure Package, as of its effective datethe Applicable Time, 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 other than the financial statements or and related notes and other financial or and financial reserve information and statistical and accounting data or the Form T-1 included or incorporated by reference contained therein, as to which such counsel need express no opinion). In 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 Minnesota and the Delaware General Corporation Law or the United States, to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 apublic officials.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; each of Bank of America, N.A. and Fleet National Bank (“Principal Subsidiary Banks”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and each of the Principal Subsidiary Banks is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or each of the Principal Subsidiary Banks, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of each of the Principal Subsidiary Banks have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of each of the Principal Subsidiary Banks (except directors’ qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Indenture Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 sky, securities or insurance or similar laws of any jurisdiction the United States in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default underunder the certificate of incorporation or by-laws of the Company, each as amended to date, or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named any Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or any Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Subsidiary Company or any Principal Subsidiary Bank; and
(xii) such counsel is without knowledge of their respective properties, the effect of which would be material any rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company’s intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent auditors registered public accounting firm with respect to the Company within the meaning of the Securities Act and in form the applicable rules and substance satisfactory to regulations thereunder adopted by the Representatives, stating in effect that:Commission.
(iii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 thereunderadopted by the Commission.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors of the Principal Subsidiary Banks as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information of the Company and its subsidiaries, if anycondensed consolidated interim financial statements, included or incorporated by reference 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., for them to be in conformity with generally accepted accounting principles;
(C3) (Ii) as at the date of the latest available interim financial data and at the specified date as not more than five business days prior to the date of which the Company and its subsidiaries have monthly financial statementsdelivery of such letter, there was any decrease change in the capital stock, additional paid-in capital common stock or related earnings, or increase in the consolidated long-term indebtedness debt (other than scheduled repayments of such debt) of the Company and its subsidiaries, the subsidiaries on a consolidated basis as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries latest balance sheet included or incorporated by reference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 at
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder, as to purchase the Securities Notes to be delivered at each Delivery Date, shall be subject subject, in their discretion, to the accuracy in condition that all material respects of the representations and warranties on the part and other statements of the Company contained herein are, at and as of the date hereof and each Delivery Date, true and correct and the Closing Datecondition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions, unless any such condition is waived in writing by the Representatives:
(a) The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); each Issuer Free Writing Prospectus shall have been filed with the Commission if required, in the manner and within the time period required by Rule 433; no stop order suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act shall have been initiated or, to the accuracy knowledge of any material statements made in any certificatesthe Company, opinionsthreatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) On each Delivery Date, affidavitsSkadden, written statements or letters furnished to the Representatives or to Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you an opinion or opinions, dated such dates, with respect to the issuance and sale of the Notes on each such Delivery Date, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) On each Delivery Date, the Company shall have furnished to you an opinion and negative assurance statement of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company, addressed to the performance by Underwriters and dated such Delivery Date, in the form set forth in Exhibit A hereto.
(d) On each Delivery Date, the Company shall furnish to you an opinion of its respective obligations hereunder and the General Counsel of the Company, addressed to the following additional conditions:Underwriters and dated such Delivery Date, in the form set forth in Exhibit B hereto.
(ae) The Final Prospectus On each Delivery Date, the Company shall have been filed with furnished to you an opinion of ▇▇▇▇▇ & Overy LLP, Investment Company Act counsel for the Commission pursuant Company, addressed to Rule 424 not later than 5:00 p.m.the Underwriters and dated such Delivery Date, New York City time, on in the second business day following form set forth in Exhibit C hereto.
(f) On the date of this Agreement and also at each Delivery Date, KPMG LLP shall have furnished to you a letter or such later date letters, dated the respective dates of delivery thereof, in form and time as shall be consented substance satisfactory to in writing by the Representatives.
(b) No order suspending , containing statements and information of the effectiveness type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and pro forma information of the Company contained or incorporated by reference in the Registration Statement, as amended from time the Disclosure Package and the Prospectus.
(g) On the date of this Agreement and also at each Delivery Date, Ernst & Young LLP shall have furnished to timeyou a letter or letters, or suspending dated the qualification respective dates of delivery thereof, in form and substance satisfactory to the Representatives, containing statements and information of the Indenture, shall be type ordinarily included in effect accountants’ “comfort letters” to underwriters with respect to the financial statements and no proceedings for such purpose shall be pending before certain financial information of Convergex and Starboard contained or threatened incorporated by the Commission and any requests for additional information on the part of the Commission (to be included reference in the Registration Statement or Statement, the Final Prospectus or otherwise) shall have been complied with to Disclosure Package and the reasonable satisfaction of the RepresentativesProspectus.
(ch) Since Subsequent to the respective dates as earlier of which information is given (A) the Initial Time of Sale and (B) the execution and delivery of this Agreement, no event or condition of a type described 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 (gSection 1(f) of this Section 6 whichAgreement shall have occurred or shall exist, which event or condition is not described in the Disclosure Package Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives, Representatives makes it impracticable or inadvisable to proceed with the offering and public offering, sale or delivery of the Securities as Notes at the applicable Delivery Date, on the terms and in the manner contemplated by this Agreement, the Registration Statement Disclosure Package and the Final Prospectus.
(di) The On each Delivery Date, the Company shall have furnished to the Representatives the opinion you a certificate of a Deputy General Counsel or the Chief Legal Executive, Chief Financial or Chief Accounting Officer for of the Company, dated satisfactory to you as to the day accuracy of the Closing representations and warranties of the Company herein at and as of the date hereof and such Delivery Date, as to the effect that:
performance by the Company of all of its obligations hereunder to be performed at or prior to such Delivery Date, as to the matters set forth in subsections (a), (h), (i) The Company has been duly organized and is validly existing (j) of this Section 8 and as to such other matters as you may reasonably and timely request 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 Prospectuswriting.
(iij) The Securities and the Indenture conform in all material respects Subsequent 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 execution 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 prior to each Delivery Date, there shall not have occurred any Delayed Delivery Contracts by 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 will not conflict with, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets securities 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 or in the subject matter rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(k) On the date 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 at each Delivery 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 deliver to the Representatives a certificate of its Chief Executive Financial Officer, its President dated as of such respective date in the form attached as Exhibit D hereto.
(l) You shall have received copies, duly executed by the Company and the other party or any Managing Director or Vice President and its Chief Financial Officer or its Treasurerparties thereto, dated the day of the Closing Indenture.
(m) You shall have received on and as of such Delivery Date, to satisfactory evidence of the effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties good standing of the Company and the Significant Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as you may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(n) No action shall have been taken and 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, at such Delivery Date, prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, at such Delivery Date, prevent the issuance or sale of the Notes.
(o) The Notes shall have been made eligible for clearance and settlement through The Depository Trust Company.
(p) There shall exist no event or condition which would, following the passage of time, constitute a default or an event of default under the Notes or the Indenture.
(q) On or before such Delivery Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any of the conditions specified in this Agreement are true and correct Section 8 shall not have been fulfilled in all material respects on when and as provided in this Agreement, or if any of the Closing Date with the same effect as if made on the Closing Date, opinions and the Company has complied with certificates mentioned above or elsewhere in this Agreement shall not be in 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 respects reasonably satisfactory in form and substance satisfactory to the RepresentativesRepresentatives and its counsel, stating in effect that:
(i) In their opinion, the consolidated financial statements this Agreement and all obligations of the Company and its subsidiariesUnderwriters hereunder may be canceled at, and or at any time prior to, each Delivery Date by the supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as Underwriters. Notice of such cancellation shall be given 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 earningswriting, or increase in long-term indebtedness by telephone or facsimile (with written confirmation 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 areceipt).
Appears in 1 contract
Sources: Underwriting Agreement (Cowen Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company and the Manager contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any material statements officer of the Company and the Manager made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Representatives or to shall have received (i) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Manager to the performance by effect set forth in Exhibit B-1 hereto; (ii) 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companyopinion, dated the day as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company to the effect that:
set forth in Exhibit B-2 hereto; and (iiii) The Company has been duly organized and is validly existing and in good standing under the laws opinion, dated as of the jurisdiction Closing Date, of its incorporation ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably satisfactory to the counsel for the Underwriters, together with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in signed or reproduced copies of such letters for each of the Final Prospectusother Underwriters.
(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.
(ec) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such 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 their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated signed by the day chief executive officer of the Closing DateCompany and the principal financial officer of the Company, on behalf of the Company 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the Registration Statement has become effective under the Act and 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 threatenedincorporated 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).
(xe) 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 Manager shall have furnished to the Representatives a lettercertificate signed by the chief executive officer, dated president or a senior managing director of the day Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager 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 Manager 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 (ii) the Manager has complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(ig) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated 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 any change, or any development involving a prospective change, in or affecting the condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, and the supporting schedules, included whether or not arising from transactions in the Registration Statement 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 is, in the sole judgment of the Representatives, so material and audited by them comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering, sale or delivery of the Securities Act as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Exchange Act and the related published rules and regulations thereunderFinal Prospectus (exclusive of any amendment or supplement thereto).
(iih) On At the basis of Execution Time and at the Closing Date, the Representatives shall have received a reading of certificate signed by the unaudited consolidated financial statements Chief Financial Officer of the Company certifying as to the preparation, completeness and its subsidiariesaccuracy of certain financial and statistical data relating to the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(k) 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.
(l) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the Registration Statement form of Exhibit A-1 and the Final Prospectus and A-2 hereto, signed by each of the latest unaudited consolidated financial statements made available parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. 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, letters 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 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 For 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 period from and after effectiveness of this Agreement or such later date and time as shall be consented prior to in writing by the Representatives.Closing Date:
(bi) No no stop order suspending the effectiveness of the Registration Statement, as amended from time or any post-effective amendment to time, or suspending the qualification of the IndentureRegistration Statement, shall be in effect and no proceedings for such purpose shall be pending before have been instituted or threatened by the Commission Commission;
(ii) the Company shall have filed the preliminary prospectus and any requests for additional information on the part of Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to be included in the Registration Statement or containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Prospectus or otherwiseTerm Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such rule or, to the extent applicable, under Rule 164(b) under the Securities Act; and
(iv) The Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have been complied with raised no objection to the reasonable satisfaction fairness and reasonableness of the Representativesunderwriting terms and arrangements.
(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.
(db) The Company shall have furnished to the Representatives Representative the opinion of a Deputy General Counsel or the Chief Legal Officer McGuireWoods LLP, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (v) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(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 State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Disclosure Package and the Prospectus. Each , and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and its Named the Principal Subsidiary Bank is duly qualified or licensed to do business as a foreign corporation, is corporation in good standing and is duly registered as a broker-dealer, broker, dealer each jurisdiction in which such counsel has knowledge that the Company or investment advisorthe Principal Subsidiary Bank, as the case may be, in each jurisdiction in which the nature of the business conducted by it is required to be so qualified 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.licensed;
(xiiiii) All all the outstanding shares of capital stock of the Company's Named Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and non-assessable (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except for as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' ’ qualifying shares, ) are owned beneficially, directly or indirectly, by the Company or a subsidiary of the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens, liens or encumbrances and security interests.with respect thereto;
(xiiiiv) Such such counsel does not know of is without knowledge that there is (1) any litigation or any governmental proceeding pending or threatened against action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving 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 Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the statements made in the Base Prospectus under the headings “Description of Preferred Stock” and correctly summarized therein. Such opinion shall also contain a statement that although “Description of Depositary Shares,” as supplemented, amended and/or superseded by the statements in the final prospectus supplement for the Shares dated the date of this Agreement under the headings “Description of the Preferred Stock” and “Description of the Depositary Shares,” insofar as they purport to constitute summaries of the material terms of the Deposit Agreement, the Depositary Shares and the Preferred Stock, constitute accurate summaries in all material respects;
(vi) the Registration Statement has been declared effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements, supporting schedules, footnotes and other financial, accounting and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, the Certificate of Designations and the Deposit Agreement, or the General Corporation Law of the State of Delaware is required for the execution, delivery and performance by the Company of its respective obligations under the this Agreement, the Certificate of Designations and the Deposit Agreement, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, will be entitled to the rights under, and the benefits of, the Deposit Agreement; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) none of the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement and the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Restated Certificate of Incorporation or Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any U.S. court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus, including any document incorporated by reference therein, consisting of financial statements, supporting schedules, footnotes and other financial, accounting and statistical information or statements in the Disclosure Package or the Prospectus concerning the securities and other commercial laws of countries or jurisdictions other than the United States, and it has not independently verified, is not passing upon and does not assume any assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and Statement, the Final Disclosure Package, or the Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiv) above), nothing has come to its attention that has caused it to believe that such remaining portions of the Registration Statement or any amendment thereto, insofar as it relates to the offering of the Shares, as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion), such counsel has no reason contained or contains any untrue statement of a material fact or omitted or omits to believe that (i) state any material fact required to be stated therein or necessary to make the Registration Statementstatements therein not misleading or that, subject to the foregoing with respect to financial statements, supporting schedules, footnotes and other financial, accounting and statistical information, the Disclosure Package, insofar as it relates to the offering of the Shares, taken as a whole, as of its effective datethe Initial Sale Time, 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 misleading, or that no opinion need be expressed the Prospectus, as amended or supplemented, insofar as it relates to the financial offering of the Shares, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or other financial or statistical data or when any of the Form T-1 included or incorporated by reference therein)information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of New York and North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Final Disclosure Package and the Prospectus and any other related matters as the Representatives 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its Chief Executive Officerthe Company, its signed by any Managing Director, any Director, any Senior or other Vice President or the Treasurer or any Managing Director or Vice President and its Chief Financial Officer or its Treasurerother authorized officer of the Company, dated the day of the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and he or she is without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company contained in Section 1 of this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatened.threatened by the Commission;
(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 (ziii) 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 Disclosure Package 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5Prospectus, there has been any decrease in such amounts as compared with the amounts shown material adverse change or any development involving a prospective material adverse change in the most recent consolidated condition (financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three or other), earnings, 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 properties of the Company and its subsidiaries, taken as compared with the amounts shown a whole, whether or not arising from transactions in the most recent consolidated statement ordinary course of financial condition business, except as set forth in or contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding is pending to restrain or enjoin the issuance or delivery of the Company Shares, or which in any way affects the validity of the Shares.
(e) On the date hereof and its subsidiaries on the Closing Date, the Representative shall have received a letter from PricewaterhouseCoopers LLP, dated as of the date hereof or the Closing Date, as applicable, in form and substance satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to financial statements and financial information included and incorporated by reference in the Registration Statement and the Final Prospectus; except .
(f) Subsequent to the respective dates as of which information is given in all instances for increases the Registration Statement, the Disclosure Package and the Prospectus, there shall not have been (i) any change or decreases set forth in such letter, in which case the letter shall be adecrease spec
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("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 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 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 any Significant Subsidiary that is organized under the laws of the United States or any State or territory thereof (a "Domestic Significant 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 any Domestic Significant 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 any Domestic Significant 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 any Domestic Significant Subsidiary or any order, rule or regulation known to such counsel of any court or governmental agency having jurisdiction over the Company, its Named any Domestic Significant 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 Each Domestic Significant 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 the Domestic Significant Subsidiaries 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 wholeMaterial Adverse Effect.
(xii) All the outstanding shares of capital stock of the Company's Named each Domestic Significant 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 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 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 ▇▇▇▇▇▇▇ Brothers Inc., 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 ▇▇▇▇▇▇▇ Brothers Inc., 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 retained 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 ▇▇▇▇▇▇ Brothers Inc. determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ Brothers Inc. 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 ate
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Securities shall be they have agreed to purchase hereunder on the Closing Date is subject to the accuracy in all material respects of the representations and warranties on the part of the Company Bank contained herein as of the date hereof of this Agreement, at 3:25 p.m., New York City time, on October 30, 2025 or such other time as agreed by the Bank and the Representatives (the “Time of Sale”) and the Closing Date, to the accuracy of any material the statements of the Bank made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof delivered prior to or concurrently with such purchase, to the performance by the Bank of their obligations hereunder, and to the following further conditions:
(a) Each of the Underwriters, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Bank, and Linklaters LLP, U.S. counsel for the Underwriters, shall have completed their respective due diligence investigations in accordance with procedures customary for a transaction such as the offering of the Securities pursuant to the terms and conditions of this Agreement.
(b) At the Closing Date, (i) since the date of the latest balance sheet included or incorporated by reference in the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change (other than as set forth in or contemplated in the Time of Sale Prospectus or the Prospectus) in the financial condition or in the earnings, affairs or business prospects of the Bank and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business; (ii) the Bank shall have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) the representations and warranties of the Bank set forth in Section 1 shall be accurate in all material respects as though expressly made at and as of the Closing Date. At the Closing Date, the Representatives shall have received a certificate, dated as of the Closing Date, from the Bank signed by the principal financial or accounting officer of the Bank, certifying, the matters set forth in clauses (i), (ii) and (iii) of this Section 5(b).
(c) At the Closing Date, the Representatives shall have received a signed opinion, dated as of the Closing Date, of the internal counsel to the Bank, substantially in the form set forth in Exhibit A.
(d) At the Closing Date, the Representatives shall have received a signed opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, S.L.P., Spanish counsel to the Bank, substantially in the form set forth in Exhibit B.
(e) At the Closing Date, the Representatives shall have received a signed opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, U.S. counsel to the performance by Bank, substantially in the Company of its respective obligations hereunder and to the following additional conditions:form set forth in Exhibit C.
(af) The Final Prospectus At the Closing Date, the Representatives 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 the opinion of received a Deputy General Counsel or the Chief Legal Officer for the Companysigned opinion, dated the day as of the Closing Date, of Linklaters, S.L.P., Spanish counsel 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 mattersrequest.
(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 the Representatives shall have furnished to the Representatives received a lettersigned opinion, dated the day as of the Closing Date, confirming of Linklaters LLP, U.S. counsel to the Underwriters, as to such matters as the Representatives may reasonably request.
(h) On the date hereof, the Representatives shall have received from PricewaterhouseCoopers Auditores, S.L. a letter dated such date, to the effect that they are (i) it is an independent auditors accountant with respect to the Company Bank and its subsidiaries within the meaning of the Securities Act and Act; (ii) it is its opinion that the Financial Statements included or incorporated by reference in form and substance satisfactory to the Representatives, stating in effect that:
(i) In their opinion, the consolidated financial statements Time of the Company and its subsidiaries, Sale Prospectus and the supporting schedules, included in the Registration Statement and the Final Prospectus and audited covered by them its opinion therein comply as to form in all material respects respects, except as stated in such report, with the applicable accounting requirements of the Securities Act for foreign private issuers; (iii) nothing has come to its attention that any Financial Statements included or incorporated by reference in the Time of Sale Prospectus 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 not covered 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 opinion 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.
for foreign private issuers; (Biv) 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 based upon limited procedures set forth in detail in such letter, nothing has come to its attention which causes it to believe that at a specified date not more than three New York business days prior to the unaudited consolidated financial statements date 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 statementssuch letter, 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 balance sheet included or incorporated by reference in the Time of Sale Prospectus and the Prospectus; and (v) in addition to the examination referred to in its opinion and the limited procedures referred to in clause (iv) above, it has carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial condition information which are included in the Time of Sale Prospectus and the Prospectus and which are specified by the Representatives, and has found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company Bank and its subsidiaries included identified in such letter. At the Registration Statement and Closing Date, the Final ProspectusRepresentatives shall have received a letter from PricewaterhouseCoopers Auditores, (II) with respect to S.L., dated as of the period subsequent to Closing Date, confirming the information given in its letter dated the date of the most recent financial statements included in the Registration Statement Time of Sale Prospectus and the Final Prospectus Prospectus.
(i) The Securities shall be eligible for clearance and extending settlement through the latest date Depositary.
(j) If any of the conditions specified in this Section 5 shall not have been fulfilled when and as of which required by this Agreement to be fulfilled, this Agreement may be terminated by the Company and its subsidiaries have monthly financial statements, there was a consolidated net loss or (III) with respect Representatives on notice to the amounts of net capital Bank at any time at or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 subsidiariesClosing Date, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company case may be, 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 termination shall be awithout liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 7, 8, 9, 13 and 14 herein shall remain in effect.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters' obligation to purchase the Securities Underwritten Certificates shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("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 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) 6.1 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 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 shall be in effect, and no proceeding proceedings for that purpose is shall be pending or or, to the knowledge of the Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since January 1, 2000, there shall have been no material adverse change (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 ordinary course of business) in the condition 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 wholeGMACCM.
(xii) All the outstanding shares of capital stock of the Company's Named Subsidiary 6.3 The Company shall 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 delivered 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 Underwriters 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 opinionscertificate, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesPresident, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and a Senior Vice President or a Vice President of 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 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 their his or her knowledge after due inquiryreasonable investigation:
(ia) The 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 on and as of the Closing Date with the same effect as if made on the Closing Date, and respects; and
(b) the Company has has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(iic) No stop order suspending GMACCM shall have delivered to 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 Underwriters a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingcertificate, (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 dated the Closing Date, of the President, a nationally recognized firm Senior Vice President or a Vice President of independent public accountants GMACCM to the effect that the signer of such certificate has examined the Pooling and Servicing Agreement and this Agreement and 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.
6.4 The Underwriters shall have furnished to received the Representatives a letteropinions of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Company and GMACCM, dated the day of Closing Date as to such matters reasonably requested by 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 opinionUnderwriters, the consolidated financial statements opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., counsel for the Company and its subsidiariesGMACCM, dated the Closing Date as to such matters reasonably requested by the Underwriters 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 opinion 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 ▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special California counsel for GMACCM, dated the Closing Date that GMACCM is duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, and inquiries has the requisite power and authority, corporate or other, to own its properties and conduct its business, as presently conducted by it.
6.5 The Underwriters shall have received from their counsel an opinion dated the Closing Date in form and substance reasonably satisfactory to the Underwriters.
6.6 The Underwriters shall have received from Deloitte & Touche, L.L.P., 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 officials 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 its subsidiaries, who have responsibility for financial the Mortgage Loan Sellers excluding any questions of legal interpretation and accounting matters of (b) the Company and its subsidiaries, as letter prepared pursuant 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 thereunderSection 5.9 hereof.
(B) the unaudited capsule information 6.7 The respective classes of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree with the amounts Underwritten Certificates shall have been rated as 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.Schedule I.
(C) (I) as of the latest date as of which the Company and its subsidiaries 6.8 The Underwriters shall have monthly financial statementsreceived, 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 Trustee, a favorable opinion of counsel, dated the date Closing Date, addressing the valid existence of such party under the laws of the most recent financial statements included in jurisdiction of its organization, the Registration Statement 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 Final Prospectus Pooling and extending through Servicing Agreement and on certificates furnished by public officials. Such opinion may assume the latest date as 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 Company laws of each state in which the writer of the opinion is admitted to practice law and its subsidiaries the federal law of the United States.
6.9 The Underwriters shall 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 received from ▇▇▇▇▇, ▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of & ▇▇▇▇▇▇ 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 special counsel to the date of Company, and from ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., counsel to the letterCompany, there was reliance letters with respect to any decrease in opinions delivered to the capital stock or additional paid-in capitalrating agencies identified on Schedule I hereto.
6.10 The Underwriters shall have received from counsel to each Mortgage Loan Seller, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with opinions substantially to 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 effect set forth in such letterSection 8(e) of each Mortgage Loan Seller's respective Purchase Agreement (or Section 8(v) of each of the Purchase Agreements relating to the Warehouse Mortgage Loans).
6.11 The Company will furnish the Underwriters with conformed copies of the above opinions, in which case the letter shall be acertificates, letters and documents as they reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Gmac Commercial Mortgage Securities Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 instituted or threatened.
(b) The Company shall have requested and caused R▇▇▇ ▇▇▇▇, Esq., the Executive Vice President, General Counsel and Secretary of the Company, and M▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Brand, LLP, outside counsel for the Company, to have furnished to the reasonable satisfaction of Representatives their opinions, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibits B and C hereto.
(c) Since On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall have furnished to the Underwriters letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the Company’s financial statements and certain financial information of the Company contained or incorporated by reference in the Disclosure Package and the Final Prospectus; provided that each letter shall use a “cut-off” date no more than three business days prior to the date of such letter.
(d) 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 ProspectusProspectus (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 (gc) 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, makes so material and adverse as to make it impracticable impractical or inadvisable to proceed with the offering and or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final ProspectusProspectus (exclusive of any amendment or supplement thereto).
(de) The 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 in 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.
(f) Prior to the Closing Date, the Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companysuch further information, dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized certificates 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 request. If any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated the day of the Closing Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, to the effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties or if any of the Company opinions and certificates mentioned above or elsewhere 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 shall not 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 reasonably satisfactory in form and substance satisfactory to the RepresentativesRepresentatives and counsel for the Underwriters, stating in effect that:
(i) In their opinionthis Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the consolidated financial statements Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and its subsidiariesin 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 M▇▇▇▇ ▇▇▇▇▇ LLP, and counsel for the supporting schedulesUnderwriters, 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 at 7▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards)Chicago, a reading of Illinois 60606, on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy in all material respects of and compliance with the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing DateTime, to the accuracy of any material the statements of the Company’s officers made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President and Deputy General Counsel of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit B hereto.
(3) An opinion, dated the day of the Closing Time, of Debevoise & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for U.S. Bank Trust National Association, as the Trustee, Subordination Agent and Loan Trustee under the Indentures and Paying Agent in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit D hereto.
(5) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇ ("& ▇▇▇▇▇▇▇ LLP, counsel for U.S. Bank National Association, as the Escrow Agent in form and substance reasonably satisfactory to counsel for the Underwriters' Counsel") pursuant to this Section 6, together with signed or reproduced copies of such letter for each of the other Underwriters to the performance by effect set forth in Exhibit E hereto.
(6) An opinion, dated the Company day of its respective obligations hereunder the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., tax counsel for the Trustee, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F-1 hereto.
(7) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Trustee, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F-2 hereto.
(8) An opinion, dated the day of the Closing Time, of Christian de Le Hir, counsel for the Liquidity Provider, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit G hereto.
(9) An opinion, dated the day of the Closing Time, of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Liquidity Provider, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit H hereto.
(10) An opinion, dated the day of the Closing Time, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, in-house counsel for the Depositary, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit I hereto.
(11) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇ ▇▇▇▇ LLP, New York counsel for the Depositary, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit J hereto and to such further effect as counsel to the following additional conditions:Underwriters may reasonably request.
(a12) An opinion, dated the day of the Closing Time, from Shearman & Sterling LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as you may reasonably require.
(b) 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 424(b) under the second business day following Act within the date of this Agreement or applicable time period prescribed for such later date and time as shall be consented to in writing filing 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 rules 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 regulations 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 termsSection 3(a) hereof; and the Securities have been duly authorized, executed and issued final term sheet contemplated by the CompanySection 3(b) hereof, 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 any 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 material 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.
(viiiRule 433(d) The Registration Statement has become effective under the Securities Act, and, to shall have been filed with the best of Commission within the knowledge of applicable time periods prescribed for such counsel, filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement has or any part thereof shall have been issued and no proceeding for that purpose is pending shall have been initiated or, to the knowledge of the Company, threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or, to the knowledge of the Company, threatened by the Commission.; and all requests for additional information by the Commission shall have been complied with to your reasonable satisfaction;
(ixc) The Registration StatementOn or after the date hereof, there shall not have been (i) any change or decrease, specified in the Final Prospectus and each amendment thereof letters referred to in paragraph (d) of this Section 4 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 thereinii) 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 distributionany change, or any development involving a prospective change, in or affecting 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 business or 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 subsidiaries, taken as a foreign corporationwhole, is the effect of which, in good standing any case referred to in clause (i) or (ii) above, is, in your reasonable judgment, so material and is duly registered adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Pricing Disclosure Package and the Prospectus; and you shall have received a broker-dealercertificate of the President, brokeran Executive Vice President, dealer a Senior Vice President or investment advisora Vice President of the Company, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, in the case may beof clause (ii) above, 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 subsidiaries, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company contained in the Operative Documents are true and correct with the same force and effect as a wholethough made at such Closing Time, and as to such other matters as you may reasonably request.
(xiid) All At the outstanding shares of capital stock time 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 execution of this Agreement or is required to be disclosed in and also at 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 accuracyClosing Time, 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) Ernst & Young LLP shall have furnished to you a letter or letters, dated the Registration Statement, as respective dates 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 thereindelivery thereof, in the light form and substance reasonably satisfactory to you, together with signed or reproduced copies of such letter or letters for each of the circumstances under which they were made, not misleading (except that no opinion need be expressed as other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the Underwriters with respect to the financial statements or other and certain financial or statistical data or information contained in the Form T-1 included or incorporated by reference therein). In rendering such opinionPricing Disclosure Package and the Prospectus, such counsel may rely upon opinions and (ii) you shall have received a certificate of local counsel satisfactory to the Representatives for matters not governed by New York law ▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President and may rely as to matters of fact, to the extent he deems proper, upon certificates or affidavits of officers Chief Financial Officer of the Company, dated the Trustee and public officials. Such counsel may rely on a certificate respective dates thereof, substantially in the form of the Trustee with respect to the execution of the Securities by the Company and the authentication thereof by the TrusteeExhibit K hereto.
(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 you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representatives purpose of enabling such counsel to pass upon the matters to be covered by the opinions required to be delivered under subsections (a)(11) and (a)(12) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a certificate of its Chief Executive Officerletter from such Appraiser, its President or any Managing Director or Vice President addressed to the Company and its Chief Financial Officer or its Treasurer, dated the day of the Closing DateTime, to the effect that, to the best confirming that such Appraiser and each of their knowledge after due inquiry:
its directors and officers (i) The representations and warranties is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities by either S&P or Moody’s, and (ii) neither S&P nor Moody’s shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects reasonably satisfactory to you and your counsel. If any condition specified in this Agreement are true and correct in all material respects on Section shall not have been fulfilled when and as required to be fulfilled, other than by reason of the Closing Date with the same effect as if made on the Closing Dateany default by any Underwriter, and such failure to fulfill a condition may be waived by you, or this Agreement may be terminated by you by notice to the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at any time 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 misleadingTime, and (z) since the effective date such termination shall be without liability of the Registration Statement there has not occurred any event required party to be set forth any other party, except as provided in an amended or supplemented prospectus Sections 5, 7 and 10 hereof, which has not been so set forth. 14
(g) At the Closing Date, a nationally recognized firm of independent public accountants provisions 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 remain 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 thereundernotwithstanding such termination.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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), shall have been filed with the Commission pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of Closing Date and addressed to the Closing DateRepresentatives, to the effect that:
(i) The Company the Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been duly organized filed with the Commission not earlier than three years prior to the date of the Underwriting Agreement; the Indenture has been qualified under the Trust Indenture Act; each Preliminary Prospectus and the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; and no order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering of the Securities is pending or, to the knowledge of such counsel, threatened by the Commission; the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder.
(ii) each of the Company and each of its Significant Subsidiaries is validly existing and as a corporation in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized, with all requisite full corporate 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 Disclosure Package and the Final Prospectus., and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where such failure to be so qualified would not have a Material Adverse Effect;
(iiiii) The the Securities and the Indenture conform in all material respects to the descriptions description thereof contained in the Disclosure Package and the Final Prospectus.;
(iiiiv) The the Indenture has been duly authorized, executed and delivered by the Companydelivered, 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 termsterms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting 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 Company entitled to the benefits of the Indenture; provided however;
(v) to such counsel’s knowledge, that 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 foregoing Company or any of its subsidiaries or its or their property, of a character required to be disclosed pursuant to Item 103 of Regulation S-K in the Company’s periodic reports filed under the Exchange Act which is subject not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required, and to the effects extent that they constitute matters of bankruptcylaw, insolvencysummaries of legal matters or legal conclusions, fraudulent conveyance, reorganization, moratorium the statements set forth in the Prospectus under the caption “Material U.S. Federal Income Tax Considerations” are accurate in all material respects 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.fairly present the information provided;
(ivvi) No this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization authorization, order, registration or order qualification of or with any court or arbitrator or governmental agency or body regulatory authority is required for to be obtained by the consummation of Company in connection with the transactions contemplated in this Agreementherein, except for (1) the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations authorizations, orders and registrations or orders as have been obtained under the Securities Act and such qualifications as may be required under the Exchange Act and the blue sky laws of any United States jurisdiction or the securities laws of any foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, ;
(ix) neither the execution and (2) the qualification delivery of the Indenture under Indenture, the Trust Indenture Actissue and sale of the Securities, which has been obtained.
(v) Such counsel does not know nor the consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof will not conflict with, or result in the creation a breach or violation of, or imposition of any material lien, charge or encumbrance upon any of the property or assets of the Company or its Named Subsidiary Significant Subsidiaries pursuant to to, (i) 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 Significant Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or any orderother agreement, rule obligation, condition, covenant or regulation instrument known to such counsel to which the Company or its Significant Subsidiaries is a party or bound or to which its or their property is subject (except for any such breach, violation or default that could not adversely affect in a material respect the ability of the Company to perform its obligations under this Agreement, or would otherwise be material in the context of the sale of the Securities), or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its Significant Subsidiaries of any court court, regulatory body, administrative agency, governmental body, arbitrator or governmental agency other authority having jurisdiction over the Company, Company or its Named Subsidiary Significant Subsidiaries or any of its or their respective properties; and
(x) to such counsel’s knowledge, no holders of securities of the effect Company have rights to the registration of which would be material to such securities under the Registration Statement. Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under independent accountants and counsel at which conferences the Securities Act, and, to the best contents 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 Disclosure Package and the Prospectus and each any amendment thereof or and 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 related matters were discussed 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 assumes no responsibility for the accuracy, completeness or fairness of the statements contained in Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto (except as expressly provided above), no facts have come to such counsel’s attention that cause such counsel to believe that at the Effective Date immediately preceding the Execution Time the Registration Statement and contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the Final Prospectus (except as to those matters stated in paragraph (ii) of such opinion)statements therein not misleading, such counsel has no reason to believe that (i) the Registration StatementDisclosure Package, as of its effective dateat the Execution Time, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading or (ii) that the Final Prospectus or any amendment or supplement thereto as of its date and the Closing Date contains any untrue statement of a material fact or omits to state any a 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 other than, in each case, the financial statements or statements, related schedules and other financial or statistical data or the Form T-1 included or incorporated by reference therein, as to which such counsel need express no belief). 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 opinions the opinion of local other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters and may rely (B) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and public officials. Such counsel may rely on a certificate of the Trustee with respect References to the execution of Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Securities by the Company and the authentication thereof by the TrusteeClosing Date.
(ec) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the 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.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, solely in their respective capacities as such, dated the day of 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 and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 threatenedincorporated by reference in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time).
(xe) The Registration Statement does not contain any untrue statement of a material fact or omit Company shall have requested and Deloitte & Touche LLPshall have furnished to state any material fact required to be stated therein or necessary to make the statements therein not misleadingRepresentatives, (y) at 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, Execution Time 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 at the Closing Date, a nationally recognized firm letters (which may refer to letters previously delivered to one or more of independent public accountants shall have furnished to the Representatives a letterRepresentatives), dated respectively as of the day Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent auditors with respect to the Company accountants within the meaning of the Securities 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 nine-month period ended September 30, 2006, in form and substance satisfactory to the Representatives, accordance with Statement on Auditing Standards No. 100,and stating in effect that:
(i) In in their opinion, opinion the consolidated audited financial statements of the Company and its subsidiaries, and the supporting schedules, pro forma financial statements included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus and audited reported on 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.adopted by the Commission;
(ii) On 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 ▇▇▇▇▇▇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, 2006, the Preliminary Prospectus and the Final Prospectus; carrying out certain specified procedures (but not an audit 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 auditcommittee of the Company and ▇▇▇▇▇▇, Company; 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, 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 ProspectusDecember 31, 2005, nothing came to their attention that which caused them to believe that:
(A1) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and with the published instructions, related rules and regulations thereunder.
(B) adopted by the unaudited capsule information of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree Commission with the amounts set forth in the unaudited consolidated respect to financial statements of included or incorporated by reference in quarterly reports on Form 10-Q under the Company from which it was derived or was Exchange Act; and said unaudited financial statements are not determined in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus 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, (II2) with respect to the period subsequent to September 30, 2006, there were any changes, at January 8, 2007, in the date long-term debt of the most recent financial statements included Company, in the Registration Statement and the Final Prospectus and extending through the latest date as common stock of which the Company and its subsidiaries have monthly financial statements, there was a or decreases in the stockholders’ equity of the Company or decrease in consolidated net loss or (III) with respect to current assets of the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5, there has been any decrease in such amounts Company as compared with the amounts shown in on the most recent September 30, 2006 consolidated financial statements balance sheet included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus 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 for the Company and its subsidiariesperiod from November 26, 2006 to January 8, 2007 there were any decreases, as compared with the amounts shown corresponding period in the most recent preceding year; in consolidated statement net revenues or in total or per share amounts of financial condition net income of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; Company, except in all instances for increases changes or decreases set forth in such letter, in which case the letter shall be aacc
Appears in 1 contract
Sources: Underwriting Agreement (Snap on Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Companies contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Companies made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Companies of their obligations hereunder and to the following additional conditions (provided it is understood and agreed that the offering of the Notes in Canada by the Underwriters as contemplated herein shall be made in the provinces of Canada on a private placement basis in accordance with applicable exemptions from the prospectus requirements of applicable Canadian Securities Laws):
(a) The Final Prospectus, and any supplement thereto, 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 Companies 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 of the Act shall have been instituted or threatened.
(b) The Representatives or shall have received (i) the opinion and negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Companies, dated the Closing Date and addressed to the Representatives, to the effect as set forth on Exhibit A hereto, (ii) the opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., the Chief Legal Officer of Equinix, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit B hereto, and (iii) the opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, special tax counsel for the Companies, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 the opinion of a Deputy General Counsel or the Chief Legal Officer counsel for the CompanyUnderwriters, such opinion and negative assurance letter, dated the day of the Closing Date, Date and addressed 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 DateRepresentatives, 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 Companies shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company Representatives shall have received the favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Issuer, dated the Closing Date and addressed to the Representatives in form and substance reasonably acceptable to the Representatives.
(e) The Companies shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Companies, its President signed by, in the case of Equinix, the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of Equinix and, in the case of the Issuer, an authorized signatory, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company Companies 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, Date and the Company has Companies have complied with all the agreements and satisfied all the conditions on its part each of their respective parts to be performed or satisfied at or prior to the Closing Date.;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or or, to any of the Companies’ knowledge, threatened.;
(xiii) The Registration Statement does not contain no order, ruling or decision of any untrue statement of a material fact Canadian federal or omit to state provincial court or securities regulatory authority restricting or ceasing trading in 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, securities of the Issuer or suspending or preventing the use of the Preliminary Canadian Offering Memorandum or the Canadian Offering Memorandum has been issued and no notification from any Canadian federal or provincial court or securities regulatory authority of the institution or threatening of any proceeding for such purpose has been received; and
(ziv) 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 Disclosure Package, the Final Prospectus and extending through the latest date Canadian Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or other), business, properties or results of operation of Equinix 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 Final Prospectus and the Canadian Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from PricewaterhouseCoopers, LLP (US), at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of which the Company Execution Time and its subsidiaries have monthly financial statementsas of the Closing Date and each in form and substance satisfactory to the Representatives, there was a consolidated net loss or (III) containing statements and information of the type customarily included in accountants’ “comfort” letters to underwriters with respect to the amounts financial statements and certain financial information of net capital Equinix and its subsidiaries contained or excess net capital incorporated by reference in each of the Disclosure Package, the Final Prospectus and the Canadian Offering Memorandum, confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to Equinix and its subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the PCAOB; provided that the “comfort” letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(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 Final Prospectus and the Canadian Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of Equinix 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 Final Prospectus and the Canadian Offering Memorandum (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, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package, the Final Prospectus and the Canadian Offering Memorandum (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Companies’ debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Companies shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Notes shall be eligible for clearance and settlement through the facilities of CDS. 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 Companies 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 ▇▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5& ▇▇▇▇▇▇▇▇ LLP, there has been any decrease in such amounts as compared with counsel for the amounts shown in Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on 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 aClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificatescertificates pursuant to the provisions hereof, opinionsto the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, affidavitsand any supplement thereto, written statements 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), 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 letters any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Registration Statement is an “automatic shelf registration statement” (as defined under Rule 405) that has been filed with the Commission not earlier than three years prior to the date of the Underwriting Agreement; the Indenture has been qualified under the Trust Indenture Act; each Preliminary Prospectus and the Final Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein; and no order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering of the Securities is pending or, to the knowledge of such counsel, threatened by the Commission; and the Registration Statement and the Final Prospectus (other than the financial statements and other financial 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 Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder.
(ii) each of the Company and the Significant 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 Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where such failure to be so qualified would not result in a Material Adverse Effect;
(iii) the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(v) 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 Company entitled to the benefits of the Indenture;
(vi) to such counsel’s knowledge, 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 pursuant to Item 103 of Regulation S-K in the Company’s periodic reports filed under the Exchange Act which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required, and to the extent that they constitute matters of law, summaries of legal matters or legal conclusions, the statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations” are accurate in all material respects and fairly present the information provided;
(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 Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required to be obtained by the Company in connection with the transactions contemplated herein, except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required under the blue sky laws of any United States state jurisdiction or the securities laws of any foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters;
(x) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will 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 any Significant Subsidiary pursuant to, (i) the charter or by-laws of the Company or any Significant Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or bound or to which its or their property is subject (except for any such breach, violation or default that could not adversely affect in a material respect the ability of the Company to perform its obligations under this Agreement, or would otherwise be material in the context of the sale of the Securities) or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any Significant Subsidiary or any of their respective properties; and
(xi) to such counsel’s knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its independent accountants and counsel at which conferences the contents of the Registration Statement, the Disclosure Package and the Final Prospectus and any amendment and supplement thereto and related matters were discussed and, although such counsel assumes no responsibility for the accuracy, completeness or fairness of the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto (except as expressly provided above), no facts have come to such counsel’s attention that cause such counsel to believe that (i) at the Effective Date immediately preceding the Execution Time, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Final Prospectus or any amendment or supplement thereto, as of its date and the Closing Date, contains any untrue statement of a material fact 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 (other than, in each case, the financial statements, related schedules and other financial data included or incorporated by reference therein, as to which such counsel need express no belief). 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, 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 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 Section 7(b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 counsel 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 Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the 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.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, solely in their respective capacities as such, dated the day of 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 and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 threatenedincorporated by reference in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time).
(xe) 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, Company shall have requested 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 Deloitte & Touche LLP shall have furnished to the Representatives a letterRepresentatives, at the Execution Time and at the Closing Date, “comfort” letters, dated as of the day Execution Time and as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent auditors with respect to the Company registered public accounting firm within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have audited the consolidated financial information of the Company for the year ended January 2, 2010, in form accordance with the standards of the Public Company Accounting Oversight Board (United States), and substance satisfactory to the Representatives, stating in effect that:
(i) In in their opinion, opinion the consolidated audited financial statements of the Company and its subsidiaries, and the supporting schedules, included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus and audited reported on 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.adopted by the Commission;
(ii) On on the basis of a reading their audit of the unaudited consolidated financial statements of information for the Company and its subsidiariesyear ended January 2, if any2010, included in the Registration Statement Preliminary Prospectus and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇, Prospectus; carrying out certain specified procedures (but not an audit 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 committee of the Company and ▇▇▇▇▇▇, Company; 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, 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 ProspectusJanuary 2, 2010, nothing came to their attention that which caused them to believe that:
(A1) any audited financial statements of the Company 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 Securities Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in the annual report on Form 10-K under the Exchange Act; and said audited financial statements are not in conformity with GAAP;
(2) (i) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if anystatements, included in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; GAAP, and such (ii) the unaudited 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, related rules and regulations thereunderadopted by the Commission.
(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, (II3) with respect to the period subsequent to October 2, 2010, there were any changes at the “cut-off date” specified therein (which date shall be reasonably satisfactory to the Representatives) in the long-term debt of the most recent financial statements included Company, in the Registration Statement and the Final Prospectus and extending through the latest date as common stock of which the Company and its subsidiaries have monthly financial statements, there was a or decreases in the stockholders’ equity of the Company or decrease in consolidated net loss or (III) with respect to current assets of the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5, there has been any decrease in such amounts Company as compared with the amounts shown in on the most recent October 2, 2010 unaudited consolidated financial statements balance sheet included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus;
(D) as of a specified date not more than three business days prior , or for the period from October 2, 2010 to the “cut-off date” specified therein (which date of shall be reasonably satisfactory to the letterRepresentatives), there was were any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and its subsidiariesdecreases, as compared with the amounts shown corresponding period in the most recent preceding year; in consolidated statement net revenues or in total or per share amounts of financial condition net income 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 letterCompany, in which case the letter shall be aexcep
Appears in 1 contract
Sources: Underwriting Agreement (SNAP-ON Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before <Page> 5 have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, <Page> 6 when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 <Page> 7 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of the Closing <Page> 8 Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement and they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the <Page> 9 Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information of the Company and its subsidiaries, if anycondensed consolidated interim financial statements, included or incorporated by reference 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., for them to be in conformity with generally accepted accounting principles;
(C3) (Ii) as at the date of the latest available interim financial data and at the specified date as not more than five business days prior to the date of which the Company and its subsidiaries have monthly financial statementsdelivery of such letter, there was any decrease change in the capital stock, additional paid-in capital stock or related earnings, or increase in the long-term indebtedness debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and its subsidiaries, the subsidiaries on a consolidated basis as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries latest balance sheet included or incorporated by reference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 aan
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein set forth as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following additional conditions, unless waived in writing by the Underwriters:
(a) The Registration Statement shall have been declared effective by the Commission prior to the date of this Agreement; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission or any material statements made state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose have been initiated or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) Since the dates as of which information is given in the Registration Statement and Prospectus:
(i) there shall not have occurred any change or development involving, or which could be expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and
(ii) the Company shall not 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, in any certificatessuch case described in clause (i) or (ii) above, opinionsis in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(c) The Underwriters shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact that, affidavitsin the opinion of the Underwriters or counsel for the Underwriters, written is material, or omits to state a fact that, in the opinion of the Underwriters or such counsel, is material and is required to be stated therein or necessary to make the statements or letters furnished to the Representatives or to therein not misleading.
(d) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇ ▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6, counsel for the Company addressed to the performance by the Company of its respective obligations hereunder Underwriters 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day of the Closing Date, Date substantially to the effect that:
(i) The Company has been duly organized incorporated and is validly existing and as a corporation in good standing under the laws of the State of Delaware, and is qualified to do business and is in good standing in Alabama, Colorado, Illinois, Indiana, Kansas, Maryland, Ohio, Pennsylvania, Texas, Washington and Wisconsin;
(ii) Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of its incorporation incorporation, with all requisite full corporate power and authority to own own, lease and operate its properties and to conduct its business as presently conducted and as described in the Final Prospectus and the Registration Statement; each Significant Subsidiary is duly registered or qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such registration or qualification is required, except where the failure to so register or qualify would not have a Material Adverse Effect; all the shares of common stock of each of the Significant Subsidiaries as of the Closing Date are validly issued and are owned by the Company of record and to the knowledge of such counsel (A) beneficially and (B) free and clear of any security interest, adverse claim or encumbrance except as disclosed in the Prospectus.;
(iii) The Notes to be issued and sold by the Company under this Agreement have been duly authorized by the Company and, when duly executed, authenticated and delivered to and paid for by the Underwriters, will be valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except to the extent that such validity, binding effect and enforceability may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally, or (B) general principles of equity, or the possible unavailability of the remedy of specific performance or injunctive relief, regardless of whether issues of validity, binding effect or enforceability are considered in a proceeding in equity or at law;
(iv) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid, legally binding and enforceable obligation of the Company (a) except as rights and obligations under Section 8 hereof may be limited by applicable law, including securities laws, public policy considerations underlying such laws, and equitable principles, and (b) except to the extent that such validity, binding effect and enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally, or (ii) The Securities and general principles of equity, or the Indenture conform possible unavailability of the remedy of specific performance or injunctive relief, regardless of whether issues of validity, binding effect or enforceability are considered in all material respects to the descriptions thereof contained a proceeding in the Final Prospectus.equity or at law;
(iiiv) The Indenture has been duly authorized, executed and delivered by the Company, has been Company and duly qualified under the Trust Indenture Act of 1939 and constitutes a legalvalid, valid legally binding and binding enforceable instrument enforceable against the Company in accordance with its terms; and the Securities have been duly authorized, executed and issued by of 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 except to the benefits of the Indenture; provided howeverextent that such validity, that the foregoing is subject to the effects of binding effect and enforceability may be limited by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally, or (b) general equitable principles (of equity, or the possible unavailability of the remedy of specific performance or injunctive relief, regardless of whether the issues of validity, binding effect or enforceability are considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing.;
(ivvi) The Company has corporate power and authority to execute and deliver and perform its obligations under this Agreement and the Indenture;
(vii) The statements contained in the Prospectus, insofar as they purport to summarize the provisions of the Notes and the Indenture, present fair summaries of such provisions;
(viii) The performance of this Agreement and the Indenture by the Company and the consummation by the Company of the transactions contemplated herein will not (a) result in a breach or default by the Company under any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to us by which the Company is bound or to which the Company is a party or by which any material properties of the Company are bound, (b) conflict with or result in any default under the Certificate of Incorporation or the By-laws, in each case as amended, of the Company; or (c) result in the violation by the Company of any statute, order, rule or regulation of any court or governmental agency or body, in each case known to us, by which the Company is bound (except that with respect to the Act and the rules and regulation promulgated thereunder, such counsel's opinion is limited to the matters expressed in paragraphs ix, x, xi, xii, xiii and xiv below, and it being understood that you have not requested and such counsel is not expressing any opinion as to any state securities or "Blue Sky" laws);
(ix) No consent, approval, authorization or order of of, or registration or qualification with, any court or governmental agency or body or other regulatory authority is required for the consummation performance by the Company of the transactions contemplated in by 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 state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Notes 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.
(viiix) The Registration Statement has become effective under the Securities Act, and, and to the best of the knowledge of such counsel's knowledge, 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.;
(ixxi) The conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;
(xii) Such counsel has participated in the preparation of the Registration StatementStatement and the Prospectus. From time to time in connection therewith, such counsel has had discussions with the officers, directors and employees of the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to independent accountants who examined certain of the financial statements or of the Company and its consolidated Subsidiaries included in the Registration Statement and the Prospectus, and the Underwriters concerning the information contained in the Registration Statement and the Prospectus and the proposed responses to various items in Form S-3. Based thereupon, such counsel is of the opinion that the Registration Statement and the Prospectus (except for the operating statistics, financial statements, financial schedules and other financial data included therein or statistical data or omitted therefrom, and except for the Form T-1 of the Trustee information referred to under the Trust Indenture Act caption "Experts" as having been included or incorporated by reference therein) comply in the Prospectus on the authority of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP as experts, as to which such counsel expresses no opinion), as of their respective effective and issue dates complied 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 rules 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 interestsregulations thereunder.
(xiii) Such counsel does has 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 independently verified and correctly summarized therein. Such opinion shall also contain a statement that although such counsel is not passing upon upon, and does not assume any responsibility for the accuracy, completeness or fairness of the statements information contained in the Registration Statement and the Final Prospectus (except as Prospectus. Based on the participation and discussions described above, however, no facts have come to those matters stated in paragraph (ii) of such opinion), counsel's attention that cause such counsel has no reason to believe that (i) the Registration StatementStatement (except for the operating statistics, financial statements, financial schedules, and other financial data included therein or omitted therefrom, and except for the information referred to under the caption "Experts" as having been included in the Registration Statement and the Prospectus on the authority of its ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP as experts), at the time it became effective date, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, or that the Prospectus (iiwith the foregoing exceptions) on the Final Prospectus Closing Date contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading;
(except xiv) Based upon the participation and discussions described above, such counsel does not know of any litigation or governmental proceedings, pending or threatened, required to be described in the Prospectus that no opinion need are not described as required, or of any contracts or other documents of a character required to be expressed filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required. With respect to the statements set forth in the preceding sentence regarding litigation and governmental proceedings, such counsel has with your consent relied on a review of litigation summaries furnished by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in connection with its audit of the Company's financial statements for the fiscal year ended July 31, 1997, and on inquiries of lawyers presently in such counsel's firm who, according to such counsel's records, have been engaged in legal services on behalf of the Company subsequent to July 31, 1997, but such counsel has neither examined nor requested an examination of the indices or records of any court, or any governmental or other financial agency, authority, instrumentality or statistical data entity or made any inquiries of public officials;
(xv) Neither the Form T-1 included Company nor any Significant Subsidiary is, nor with the giving of notice or incorporated by reference therein)passage of time or both would be, in violation of its respective Certificate of Incorporation or By-laws; and
(xvi) Neither the Company nor any Significant Subsidiary is an "investment company", an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended. In rendering such their 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 factrely, to the extent he deems properdeemed advisable by such counsel, (a) upon certificates of state officials, and (b) on opinions of counsel (provided, however, that you shall have received a copy of each of such opinion which shall be dated the Closing Date addressed to you or affidavits of officers of the Companyotherwise authorizing you to rely thereon; and that ▇▇▇▇▇, the Trustee Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, in its opinion to you delivered pursuant to this subsection, shall state that such counsel are satisfactory to them and public officials. Such counsel may rely on a certificate of the Trustee with respect ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ has no reason to the execution of the Securities by the Company believe that you and the authentication thereof by the Trusteethey are not entitled to so rely).
(e) The Representatives Underwriters shall have received from an opinion of ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel for the Underwriters' Counsel such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesNotes by the Company, the Registration Statement, the Final Prospectus Statement and other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(f) The Company Underwriters shall have furnished to received on the Representatives Closing Date, a certificate of its ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board and Chief Executive Officer, its President or any Managing Director or and ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Executive Vice President President-Administration and its Business Development and Chief Financial Officer or its TreasurerOfficer, dated the day of the Closing DateCompany, to the effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Company set forth in this Agreement section 2 hereof are true and correct in all material respects on as of the date of this Agreement and as of the Closing Date with the same effect as if made on the Closing Datedate of such certificate, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied by it at or prior to the Closing Date.date of such certificate;
(ii) No The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been instituted initiated or threatened.are pending or contemplated under the Act or under the Blue Sky Laws of any jurisdiction;
(xiii) The Each of the respective signatories has carefully examined the Registration Statement does and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements required to be stated therein, and do not contain include 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 on which the Registration Statement there was initially filed, no event has not occurred any event that was required to be set forth in an amended or supplemented prospectus which or in an amendment to the Registration Statement that 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 there has been no document required to be filed under the supporting schedules, included Exchange Act that upon such filing would be deemed to be incorporated by reference 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.that has not been so ordered; and
(iiiv) On Since the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in date on which 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 was initially filed 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 statementsCommission, there was shall not have occurred any decrease in the capital stock, additional paid-in capital change or related earningsdevelopment involving, 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 awh
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 sky, securities or insurance or similar laws of any jurisdiction the United States in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company’s intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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 Prospectusspecific items for which representations are requested below, nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the common stock or the consolidated long-term debt (other than scheduled repayments of such debt) of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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.
(Cii) (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 for the period subsequent to from 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Preliminary Final Prospectus and the Final Prospectus, and any supplement thereto, 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, shall have been filed with the Commission pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or suspending the qualification of the Indenture, any notice that would prevent its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer requested and caused K▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative their opinion, dated the day of Closing Date and addressed to the Closing DateRepresentative, to the effect that:
(i) The 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 and as a corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized, with all requisite full corporate or limited liability company 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 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) The Securities 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 Indenture conform 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 than Spirit Master Funding, LLC and Spirit Master Funding II, LLC) and, to 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 the Final Prospectus; the capital stock of the Company conforms in all material respects to the descriptions description thereof contained in the Disclosure Package and the Final Prospectus.
(iii) The Indenture has ; the outstanding shares of Common Stock have been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act validly authorized and constitutes a legal, valid issued and binding instrument enforceable against the Company in accordance with its termsare fully paid and nonassessable; and the Securities have been duly and validly authorized, executed and, when issued and issued delivered to and paid for by the Company, and assuming due authentication by the Trustee and upon payment and delivery in accordance with the Underwriting Underwriters pursuant to this Agreement, will constitute legalbe 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 binding obligations 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 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.Securities;
(iv) No consentto the knowledge of such counsel, approvalthere is no pending or threatened action, authorization suit or order of proceeding by or before any court or governmental agency 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 for to be described in the consummation 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 transactions contemplated in this AgreementRegistration Statement, except for (1) insofar as such consentsstatements summarize legal matters, approvalsagreements, authorizations documents or orders as have been obtained under the Securities Act proceedings discussed therein, are accurate and fair summaries of 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 Underwriterslegal matters, and (2) the qualification of the Indenture under the Trust Indenture Actagreements, which has been obtained.documents or proceedings;
(v) Such counsel does not know 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 any contracts or other documents which are required the Code, and the Company’s current and proposed method of operation will enable it to be filed continue to meet the requirements for qualification and taxation as exhibits to a REIT under 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.Code;
(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; any required filing of the Basic Prospectus, andany Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the best of 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 and issued, no proceeding proceedings for that purpose is pending have been instituted or threatened by threatened, and the Commission.
(ix) The Registration Statement, the Preliminary Final Prospectus and each amendment thereof or supplement thereto the Final Prospectus (except that no opinion need be expressed as to other than the financial statements or and other financial or and statistical data or the Form T-1 of the Trustee under the Trust Indenture Act included or incorporated by reference 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 Securities Act and the Rules.
(x) If Exchange Act and 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, respective rules thereunder; 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 Effective Date 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) that the Final Prospectus contains 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 any a 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 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 statistical data otherwise), prospects, earnings, business or properties of the Form T-1 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 or incorporated in the offering contemplated by reference therein)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 opinions the opinion of local other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters and may rely (B) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and public officials. Such counsel may rely on a certificate of the Trustee with respect References to the execution of Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Securities by the Company and the authentication thereof by the TrusteeClosing Date.
(ec) The Representatives Representative shall have received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentative, 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 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its the Company, signed by the Chairman of the Board or the President/Chief Executive Officer, its President or any Managing Director or Vice President Officer and its the Chief Financial Officer or its Treasurerof the Company, dated the day of 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 or incorporated by reference in the Registration Statement and the Final Prospectus and extending through the latest date as (exclusive 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5any supplement thereto), there has been any decrease in such amounts as compared with no material adverse effect on the amounts shown in the most recent consolidated condition (financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three or otherwise), prospects, earnings, 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 properties of the Company and its subsidiaries, taken as compared with the amounts shown a whole, whether or not arising from transactions in the most recent consolidated statement 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 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, in form and substance satisfactory to the 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 condition or otherwise), earnings, business or properties of the Company and its subsidiaries included 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 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; except Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in all instances for increases or decreases set forth in such letter, in which case the letter shall be arating of any of the Company’s debt secu
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters to purchase and pay for the Securities shall Bonds will be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Dateherein, to the accuracy of any material the statements of Company officers made in any certificates, opinions, affidavits, written statements or letters furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to each of the following additional conditionsconditions precedent:
(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 stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or suspending the qualification of the Indenture, any part thereof shall be in effect have been issued and no proceedings for such that 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 instituted or, to the reasonable satisfaction knowledge of the Company or the Representatives, shall be contemplated by the Commission.
(cb) Since Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectusdate hereof, there shall not have been occurred (i) any change change, or decrease specified any development involving a prospective change, in or affecting particularly the letter referred to in paragraph (g) business or properties of this Section 6 the Company which, in the judgment of a majority in interest of the Underwriters including the Representatives, materially impairs the investment quality of the Bonds; (ii) any downgrading in the rating 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 public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters, including the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impracticable impractical or inadvisable to proceed with the offering and delivery completion of the Securities as contemplated by sale of and payment for the Registration Statement and the Final ProspectusBonds.
(dc) The Company Representatives shall have furnished to received an opinion, dated the Representatives the opinion Closing Date, of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Peabody LLP, counsel for the Company, dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized incorporated and is validly an existing and corporation in good standing under the laws of the jurisdiction State of its incorporation New York, with all requisite corporate authorized and outstanding capital stock as set forth in the Prospectus, and with power and authority (corporate and other) to own and operate its properties and to conduct its business as described in the Final Prospectus.
(ii) The Securities Bonds have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Indenture conform in all material respects Company entitled to the descriptions thereof contained in benefits and security provided by the Final ProspectusIndenture.
(iii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act 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 conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting enforcement of creditors' rights generallyor the security provided by the Indenture and to general equity principles, general equitable principles and except as limited by the Atomic Energy Act of 1954 and regulations thereunder relating to the Company's interest in atomic energy facilities; the Indenture creates the lien it purports to create upon the interest of the Company in the property, real and personal, intended to be subjected to the lien of the Indenture; and the Indenture has been duly recorded or filed for recordation as a mortgage of real estate and recorded or filed as a security interest in personal property and fixtures in each place in which any of the properties or assets of the Company subject to the lien of the Indenture are situated and in which such recording or filing is required to protect and preserve the lien of the Indenture (whether considered except the supplemental indenture providing for the creation of the Bonds has been recorded in a proceeding the Office of the Clerk of the County of Monroe, New York, only, and arrangements have been made for its prompt recording in equity the Offices of the Clerks of the other counties in the State of New York in which such recording is required); and all taxes and recording fees required to be paid as of the date hereof with respect to the execution, recording or at law) filing of the Indenture and by an implied covenant the issuance of good faith and fair dealingthe Bonds have been paid.
(iv) No consentThe Company has good and indefeasible title in fee simple to substantially all of its bondable real property (except that no opinion need be given with respect to leasehold interests, approvaleasements, authorization or order riparian rights, flowage rights, and property of any court or governmental agency or body is required for a similar character) and good and valid title to all other property and assets owned by the consummation Company (including such leasehold interests) and intended to be subject to the lien of the transactions contemplated in this Agreement, Indenture (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 disposed of any jurisdiction in connection accordance with the purchase and distribution provisions of the Securities by Indenture) and in both cases free and clear of all liens, charges and encumbrances, except the Underwriters, and (2) the qualification lien of the Indenture under and liens or charges of the Trust character of "excepted encumbrances" as defined in Section 1.02 of the Indenture Actand except the lien of one or more mortgages identified in such opinion, which has been obtainedlien is subject and subordinate in all respects to the lien of the Indenture; and the descriptions of all such properties and assets contained in the Indenture are adequate for the purposes of the Indenture.
(v) Such counsel does not know The franchises, permits and licenses of any contracts or other documents which are required to be filed as exhibits the Company included in the properties subject to the Registration Statement by lien of the Securities Act or by Indenture are valid and are adequate to give the Rules Company the nonexclusive right to carry on its business in the locations and substantially in the manner in which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rulesit is now being conducted.
(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, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding proceedings for that purpose is have been instituted or are pending or threatened by contemplated under the Commission.
(ix) The Act, and the Registration Statement, as of its effective date, the Final Prospectus Prospectus, as of the date of this Agreement, and each any amendment thereof or supplement thereto (except that no opinion need be expressed thereto, 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 its respective date, complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture 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 Rules 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 Regulations; although such counsel has no reason to believe that not independently verified the Securities will not be authorized for listing, subject to official notice accuracy or completeness 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 information contained in the Registration Statement and the Final or Prospectus (except as to those matters stated in paragraph (ii) of such opinion)or any amendment or supplement thereto, such counsel has no reason to believe that (i) either the Registration Statement, as of its effective date, or the Prospectus, as of the date of this Agreement, or any such amendment or supplement, as of such respective dates, 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 misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does not know of any legal or (ii) governmental proceedings required to be described in the Final Prospectus contains which are not described as required, nor of any untrue statement contracts or documents of a material fact or omits character required to state any material fact necessary in order to make the statements therein, be described in the light of Registration Statement or Prospectus or to be filed as exhibits to the circumstances under Registration Statement which they were made, are not misleading (except described and filed as required; it being understood that such counsel need express no opinion need be expressed as to the financial statements or other financial or statistical data contained in the Registration Statement or the Form T-1 included Prospectus.
(vii) This Agreement has been duly authorized, executed and delivered by the Company.
(viii) All regulatory consents, authorizations, approvals and filings required by Federal law or incorporated the laws of the State of New York for the authorization, issuance, sale and delivery of the Bonds by reference therein)the Company to the Underwriters have been obtained or made; provided, however, that no opinion need be given concerning the qualification of the Bonds for sale under the Blue Sky law of the State of New York. In rendering such the foregoing opinion, such counsel ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely upon opinions of local counsel satisfactory to the Representatives for matters not governed by New York law and may rely rely, as to matters of fact, to the extent he deems proper, upon certificates or affidavits and written statements of officers and employees of, and accountants for, the Company and 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.
(ed) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale incorporation of the SecuritiesCompany, the validity of the Bonds, the Registration Statement, the Final Prospectus Prospectus, and other related matters as the such 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.
(fe) The Company Representatives shall have furnished to the Representatives received a certificate of its Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurercertificate, dated the day of the Closing Date, to of the effect thatPresident or any Vice-President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after due inquiry:
(i) The reasonable investigation, shall state that 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 Datecorrect, and that 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.
(ii) No , that no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or threatenedare contemplated by the Commission, and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company except as set forth or contemplated in the Prospectus.
(xf) The Registration Statement does not contain any untrue statement of a material fact On or omit prior 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 this Agreement, 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 Representatives shall have furnished to the Representatives received a letter, dated the day date of the Closing Datedelivery thereof, of PricewaterhouseCoopers LLP, confirming that they are independent auditors with respect to the Company public accountants within the meaning of the Securities Act and in form the Rules and substance satisfactory to the RepresentativesRegulations, and stating in effect that:
that (i) In in their opinion, the consolidated financial statements of and schedules audited by them and incorporated by reference in the Company and its subsidiaries, and prospectus relating to the supporting schedules, included Bonds contained in the Registration Statement and Statement, as amended as of the Final Prospectus and audited by them date of such letter, 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 Rules and regulations thereunder.
Regulations; (ii) On they have made a review of any unaudited financial statements incorporated by reference in such prospectus in accordance with standards established by the American Institute of Certified Public Accountants; (iii) on the basis of the review referred to in (ii) above, a reading of the unaudited consolidated latest available interim financial statements of the Company and its subsidiariesCompany, if any, included in the Registration Statement and the Final Prospectus and inquiries of officials of the latest unaudited consolidated Company responsible for financial statements made available by the Company and ▇▇▇▇▇▇, carrying out certain accounting matters and other specified procedures (but not constituting 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:
that (A) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included incorporated by reference in the Registration Statement and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable published instructionsRules and Regulations thereunder or require any material modifications in order for them to be in conformity with generally accepted accounting principles, rules (B) if unaudited financial information for a twelve-month period is included in such prospectus, such financial information is not derived from unaudited financial statements that are stated on a basis substantially consistent with that of the audited financial statements included in such prospectus, or (C) at the date of the latest available balance sheet read by such accountants, there was any change in the capital stock, short-term indebtedness or long-term debt of the Company, any decrease in the amount of current assets over current liabilities or any decrease in shareholders' equity or total capitalization, as compared with amounts shown on the latest balance sheet included in such prospectus, except in all cases set forth in this clause (C) for changes, increases or decreases which such prospectus discloses have occurred or may occur, or which are described in such letter; and regulations thereunder(iv) they have compared certain dollar amounts, percentages and other financial information derived from the general accounting records of the Company contained or incorporated by reference in such prospectus and specified by the Representatives (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(Bg) The Representatives shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP, which reconfirms the matters set forth in their letter delivered pursuant to subsection (f) of this Section and states in effect that (i) in their opinion, any financial statements or schedules audited by them and included in the Prospectus and not covered by their letter delivered pursuant to subsection (f) of this Section comply as to form in all material respects with the applicable accounting requirements of the Act and the applicable published Rules and Regulations; (ii) they have made a review of any unaudited financial statements included in the Prospectus and not covered by their letter delivered pursuant to subsection (f) of this Section in accordance with standards established by the American Institute of Certified Public Accountants; (iii) on the basis of the review referred to in (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited capsule information of the Company and its subsidiariesfinancial statements, if any, included in the Registration Statement Prospectus and not covered by their letter delivered pursuant to subsection (f) of this Section do not comply in form in all material respects with the applicable accounting requirements of the Act and the Final related published Rules and Regulations or require any material modifications in order for them to be in conformity with generally accepted accounting principles, (B) if unaudited financial information for a twelve-month period is included in the Prospectus, such financial information is not derived from unaudited financial statements that are stated on a basis substantially consistent with that of the audited financial statements included in the Prospectus, (C) the unaudited capsule information, if any, included in the Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company data from which it was derived derived, or was not determined on a basis substantially consistent with that of (D) at 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 date of the latest date as of which the Company and its subsidiaries have monthly financial statementsavailable balance sheet read by such accountants, there was any decrease change in the capital stock, additional paidshort-in capital term indebtedness or related earnings, or increase in long-term indebtedness debt of the Company and its subsidiariesCompany, 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 amount of current assets over current liabilities or additional paid-any decrease in capitalshareholders' equity or total capitalization, 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 1 contract
Sources: Underwriting Agreement (Rochester Gas & Electric Corp)
Conditions to the Obligations of the Underwriters. (i) The obligations of the Underwriters to purchase the Underwritten Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in all material respects any certificates pursuant to the provisions hereof, and to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and (ii) the obligations of the Underwriters to purchase the Option Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives provisions hereof, and to the performance by the Company of its obligations hereunder and, in each case, to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date or any settlement date pursuant to Section 3 hereof, as applicable, and addressed to the Representatives, in a form reasonably satisfactory to the Representatives.
(c) The Selling Stockholder shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6& ▇▇▇▇ LLP, counsel for the Selling Stockholder, 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 the their opinion of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day of the Closing Date, Date and addressed to the effect that:
(i) The Company has been duly organized and is validly existing and Representatives, 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 a form reasonably satisfactory 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)Representatives. 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 opinions the opinion of local other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters, and may rely (B) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Selling Stockholder 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.
(ed) The Representatives shall have received from Winston & ▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date or any settlement date pursuant to Section 3 hereof, as applicable, and addressed to the Closing DateRepresentatives, 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 and the Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the principal executive officer and the principal financial or any Managing Director or Vice President and its Chief Financial Officer or its Treasureraccounting officer of the Company, dated the day of the Closing DateDate or any settlement date pursuant to Section 3 hereof, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 threatenedincorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or 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 amendment or supplement thereto).
(xf) 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 Selling Stockholder shall have furnished to the Representatives a lettercertificate, signed by the principal executive officer and the principal financial or accounting officer of the Selling Stockholder, dated the day of the Closing Date, confirming that they are independent auditors with respect to the Company within effect that the meaning signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the Securities Act 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 PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3, in form and substance satisfactory to the Representatives, stating containing statements customarily included in effect that:
(i) In their opinion, accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements and certain financial information of the Company and its subsidiaries, and the supporting schedules, included consolidated subsidiaries contained in the Registration Statement Statement, the Disclosure Package 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 thereunderany supplements or amendments thereto.
(h) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3, in form and substance satisfactory to the Representatives, containing statements customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of Fluid Handling contained in the Registration Statement, the Disclosure Package and the Final Prospectus and any supplements or amendments thereto.
(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) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the certificate referred to in paragraph (e)(iii) of this Section 6 or (ii) On any change, or any development involving a prospective change, in or affecting the basis of a reading of the unaudited consolidated condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, if any, included whether or not arising from transactions in the Registration Statement ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus and (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 latest unaudited consolidated financial statements made available 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).
(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.
(k) The Company shall have furnished to the Representatives a certificate of the principal financial or accounting officer of the Company, in his or her capacity as such, dated the Execution Time, Closing Date and any settlement date pursuant to Section 3 hereof, as applicable, in a form agreed between the Representatives and the Company, with respect to certain factual information included or incorporated by reference in the Disclosure Package.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any public announcement by such organization of any intended decrease in any such rating.
(m) 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.
(n) 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 addressed to the Representatives. 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Initial Sale Time, the Closing Date and the Option Closing Date, as the case may be, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions of this Section, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) Each Preliminary Final Prospectus that supplements the Basic Prospectus and the Final Prospectus shall have been filed with the Commission, in each case, within the applicable time period prescribed for such filing and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no order preventing or suspending the use of any prospectus relating to the Shares shall have been issued and no proceeding for any such purpose shall have been initiated or threatened by the Commission;
(b) The Representatives or to ▇shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, their opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect set forth in Annex I hereto;
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 the opinion of a Deputy General Counsel or the Chief Legal Officer counsel for the CompanyUnderwriters, such opinion or opinions, dated the day of Closing Date or the Option 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 addressed 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 DateRepresentatives, with respect to the issuance and sale of the SecuritiesShares, 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 reasonably require and request for the purpose of enabling them to pass upon such matters.;
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed in their representative capacities by the Chief Executive Officer, its President or any Managing Director or Vice President Officer and its Chief Financial Officer or its Treasurerof the Company, dated the day of Closing Date or the Option Closing Date, as the case may be, to the effect that, to the best of their knowledge after due inquiry:
(i) The 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 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 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 or the Option Closing Date., as the case may be;
(ii) No no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any prospectus relating to the Shares has been issued and no proceedings for that purpose have been been, to the Company’s knowledge, instituted or threatened.threatened by the Commission; and
(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 (ziii) 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 or incorporated by reference in the Final Prospectus, as amended or supplemented prior to the Execution Time, there has been no Material Adverse Change of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Final Prospectus, as amended or supplemented prior to the Execution Time, or as described in such certificate;
(e) At the Execution Time and the Closing Date and the Option Closing Date, as the case may be, the Representatives shall have received from Ernst & Young LLP a letter or letters dated such date or dates, in form and substance reasonably satisfactory to the Representatives, 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 Final Prospectus, the Disclosure Package and any Issuer Free Writing Prospectus; provided that the letter delivered on the Closing Date and the Option Closing Date, as the case may be, shall use a “cut-off” date no more than three business days prior to such Closing Date or Option Closing Date;
(f) At the Execution Time and the Closing Date and the Option Closing Date, as the case may be, each of DeGoyler and ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ & Company, Inc. shall have furnished to the Representatives, at the request of the Company, reserve report confirmation letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in such letters to underwriters with respect to the reserve and other operational information contained or incorporated by reference in the Disclosure Package, Final Prospectus and the Registration Statement;
(g) The Representatives shall have received an agreement for the benefit of the Underwriters in the form set forth as Annex II hereto, signed by each director and executive officer listed in the Company’s Proxy Statement, filed with the Commission on April 8, 2014 (each a “Lock-Up Agreement”) and each such Lock-Up Agreement shall be in full force and effect on the Closing Date and any Option Closing Date, as the case may be;
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Execution Time, the Final Prospectus as amended or supplemented prior to the Execution Time or any Issuer Free Writing 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 5 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), operations, business, prospects, properties, financial condition or results of operation 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 Final Prospectus, as amended or supplemented prior to the Execution Time, 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 Shares as contemplated by the Registration Statement, the Final Prospectus and extending through any Issuer Free Writing Prospectus;
(i) The Shares shall have been approved for listing on the latest date New York Stock Exchange, subject only to notice of issuance at or prior to the Closing Date or the Option Closing Date, as of which the case may be; and
(j) Prior to the Closing Date or the Option Closing Date, as the case may be, the Company and its subsidiaries shall have monthly financial statements, there was a consolidated net loss or (III) with respect furnished to the amounts Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of net capital the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or excess net capital 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, 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 Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder. The documents required to be delivered by this Section 5 shall be delivered to the offices of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of & ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5L.L.P. at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, there has been Dallas, Texas 75201 on the Closing Date and any decrease in such amounts Option Closing Date, 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 capitalapplicable, or increase in long-term indebtedness of such other place as 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 Representatives shall be aso instruct.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantors contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and the Guarantors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company and the Guarantors of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending or threatened by pursuant to Section 8A or Rule 401(g)(2) under the CommissionSecurities Act shall have been instituted or threatened. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act.
(ixb) The Registration Statement▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, special counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, shall have furnished to the financial statements or other financial or statistical data or Underwriters its written opinion addressed to the Form T-1 Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form 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 RulesAnnex I hereto.
(xc) If ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Securities are to be listed on the NYSEIssuers, 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 shall have furnished to the Securities with Underwriters its written opinion addressed to the NYSEUnderwriters, and such counsel has no reason to believe that dated 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 beClosing Date, 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 form 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 substance reasonably satisfactory to the Representatives Representatives, substantially in the form of Annex II hereto;
(d) DLA Piper US LLP, local counsel for matters not governed by New York law and may rely as to matters one of factthe Guarantors, shall have furnished 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 Underwriters its written opinion addressed to the execution Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form of the Securities by the Company and the authentication thereof by the Trustee.Annex III hereto;
(e) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers 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 Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Company’s Treasurer or any Managing Director or Vice President an executive officer of the Company with specific knowledge about the Company’s financial and its Chief Financial Officer or its Treasureroperational matters reasonably satisfactory to the Representatives, dated the day of the Closing Date, to the effect that the signer of such certificate has 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, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company each Issuer 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, 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 no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act has been issued and no proceedings for that purpose have been instituted or or, to the Company’s knowledge, threatened.; and
(xiii) The Registration Statement does since August 31, 2016 there shall not contain have occurred any untrue statement event that would have a Material Adverse Effect or any development that would reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of a material fact business, except as set forth in or omit to state any material fact required to be stated therein or necessary to make contemplated in the statements therein not misleading, (y) Disclosure Package and the Final Prospectus does not contain (exclusive of any untrue statement of a material fact amendment 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. 14supplement thereto).
(g) At The Company shall have requested and caused KPMG LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Underwriters), dated respectively as of the Execution Time and as of the Closing Date, in each case 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 of the Company and certain financial information contained or incorporated by reference in the Disclosure Package and the Final 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) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease beyond that reported in paragraph 5(b) or 6 of 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, 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, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized firm statistical rating organization” (as defined under Section 3(a)(62) of independent public accountants 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) FINRA has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(k) On the date hereof, the Company shall have furnished to the Representatives a letter, dated the day certificate of the Closing DateCompany, confirming that they are independent auditors with respect to signed by the Company within the meaning of the Securities Act and Company’s Chief Financial Officer, in form and substance reasonably satisfactory to the Representatives, stating in to the effect that:
that the signer of such certificate (i) In their opinion, has reviewed (x) the consolidated audited financial statements of Crown as of December 31, 2012 and 2011 and for each of the Company three years in the period ended December 31, 2012 (collectively, the “Crown Financials”) and its subsidiaries(y) the carve-out combined financial statements of Piedras Negras Brewery Business as of December 31, 2012 and 2011 and as of January 1, 2011 and for the supporting schedulesyears ended December 31, included 2012 and 2011 (collectively, the “Piedras Negras Brewery Business Financials”), both financials incorporated by reference in the Registration Statement Statement, the Disclosure Package and the Final Prospectus and audited by (ii) certifies that the Company has not become aware of any circumstances and there has not occurred any event known to the Chief Financial Officer of the Company that would require a modification of the Crown Financials for them comply as to be in accordance with GAAP or of the Piedras Negras Brewery Business Financials for them to be in accordance with IFRS. On the Closing Date, the Representatives shall have received from the Chief Financial Officer of the Company a certificate dated such date in form and substance reasonably satisfactory to the Representatives, to the effect that he reaffirms in all material respects with the applicable accounting requirements statements made in the certificate furnished by him pursuant to the previous sentence of the Securities Act and the Exchange Act and the related published rules and regulations thereunderthis subsection (k).
(iil) On the basis of date hereof, the Company shall have furnished to the Representatives a reading certificate of the unaudited consolidated Company, signed by the Company’s Chief Financial Officer, in form and substance reasonably satisfactory to the Representatives, to the effect that the signer of such certificate (i) has reviewed (x) the audited financial statements of Home Brew as of December 31, 2013 and 2014 and the Company years ended December 31, 2013 and its subsidiaries2014 and (y) the unaudited financial statements of Home Brew as of September 30, if any2015 and for the nine months ended September 30, included 2014 and 2015 (collectively, the “Home Brew Financials”), both financials incorporated by reference in the Registration Statement Statement, the Disclosure Package and the Final Prospectus and (ii) certifies that the Company has not become aware of any circumstances and there has not occurred any event known to the Chief Financial Officer of the latest unaudited consolidated financial Company that would require a modification of the Home Brew Financials for them to be in accordance with GAAP. On the Closing Date, the Representatives shall have received from the Chief Financial Officer of the Company a certificate dated such date in form and substance reasonably satisfactory to the Representatives, to the effect that he reaffirms in all material respects the statements made available in the certificate furnished by him pursuant to the previous sentence of this subsection (l).
(m) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. 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 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 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 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Constellation Brands, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before <page> 5 have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, <Page> 6 when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 <Page> 7 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of the Closing <Page> 8 Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement and they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the <Page> 9 Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information of the Company and its subsidiaries, if anycondensed consolidated interim financial statements, included or incorporated by reference 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., for them to be in conformity with generally accepted accounting principles;
(C3) (Ii) as at the date of the latest available interim financial data and at the specified date as not more than five business days prior to the date of which the Company and its subsidiaries have monthly financial statementsdelivery of such letter, there was any decrease change in the capital stock, additional paid-in capital stock or related earnings, or increase in the long-term indebtedness debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and its subsidiaries, the subsidiaries on a consolidated basis as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries latest balance sheet included or incorporated by reference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 aan
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending or threatened by pursuant to Section 8A of the CommissionAct shall have been instituted or threatened.
(ixb) 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 Representatives shall 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 received (i) the Registration Statementopinion and negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company, dated the Closing Date and addressed to the Representatives, to the effect as of its effective dateset forth on Exhibit A hereto, 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 opinion of a material fact or omits to state any material fact necessary in order to make the statements therein▇▇▇▇▇▇ ▇▇▇▇▇▇ Morandi, in the light of the circumstances under which they were madeEsq., 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 Chief Legal Officer of the Company, dated the Trustee Closing Date and public officials. Such counsel may rely on a certificate of the Trustee with respect addressed to the execution Representatives, to the effect set forth on Exhibit B hereto, and (iii) the opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, special tax counsel for the Securities by Company, dated the Company Closing Date and addressed to the authentication thereof by Representatives, in form and substance reasonably satisfactory to the TrusteeRepresentatives.
(ec) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, 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 reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or other), business, properties or results of operation of the Company and extending through the latest date 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).
(e) The Representatives shall have received from PricewaterhouseCoopers, LLP (US), at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of which the Execution Time and as of the Closing Date and each 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 of the Company and its subsidiaries have monthly financial statementscontained or incorporated by reference in each of the Disclosure Package and the Final Prospectus, there was a consolidated net loss or confirming that PricewaterhouseCoopers, LLP (IIIUS) is an independent registered accounting firm with respect to the amounts Company and its subsidiaries within the meaning of net capital the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the PCAOB; provided that the “comfort” letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(f) The Representatives shall have received from Ernst & Young LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date and each 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 of the Acquired Business contained or excess net capital incorporated by reference in each of the Disclosure Package and the Final Prospectus, confirming that Ernst & Young LLP are independent certified public accountants with respect to the Acquired Business under Rule 101 of the Code of Professional Conduct of AICPA, and its rulings and interpretations; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(g) The Representatives shall have received from PricewaterhouseCoopers, LLP (UK), at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date and each 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 of Telecity Group plc (“Telecity”) and its subsidiaries contained or incorporated by reference in each of the Disclosure Package and the Final Prospectus, confirming that PricewaterhouseCoopers, LLP (UK) are independent certified public accountants with respect to Telecity and its subsidiaries under Rule 101 of the Code of Professional Conduct of the AICPA, and its rulings and interpretations.
(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 amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraphs (e), (f) and (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, 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, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, 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 such term is defined in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the 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 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5& ▇▇▇▇▇▇▇ LLP, there has been any decrease in such amounts as compared with counsel for the amounts shown in Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on 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 aClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Indenture Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and, such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Shares conform in all material respects to the descriptions description 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 if 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 Shares are to be listed on the NYSE[ ] Stock Exchange, 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 Shares with the NYSE, [ ] Stock Exchange and such counsel has received no reason to believe information stating that the Securities Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution.;
(xivi) The Named Subsidiary such counsel 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 without knowledge that (1) there 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 action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries which would affect the subject matter subsidiaries, of this Agreement or is a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(vii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel’s knowledge, no proceeding for that purpose has been instituted or threatened; and correctly summarized the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein. Such opinion shall also contain a statement that although , 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 and regulations of the Commission thereunder;
(viii) this Agreement and the Pricing Agreement have been duly authorized, executed and delivered by the Company and each constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for 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, state securities or insurance laws of any jurisdiction in the United States in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Shares, 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 of, or constitute a default under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (2) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement; and
(xii) the Initial Shares, any Option Shares as to which the option granted in Section 2 has been exercised and the Date of Delivery determined by the Representatives to be the same as the Closing Date, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and does not assume any assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware, to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesShares, the Pricing Agreement, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on and as of the Closing Date with the same force and effect as if though expressly made on at and as of the Closing Date, Date and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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 Prospectusspecific items for which representations are requested below, nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the common stock or the consolidated long-term debt (other than scheduled repayments of such debt) of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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.
(Cii) (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 for the period subsequent to from the date of the most recent latest available 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 data to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 five business days prior to the date delivery of the such letter, there was any decrease change in the capital common stock or additional paid-in capital, or increase in the consolidated long-term indebtedness debt (other than scheduled repayments of such debt) of the Company and its subsidiariesthe subsidiaries on a consolidated basis, as compared except in all instances for changes or decreases which the Registration Statement and Final Prospectus discloses have occurred or may occur, or PricewaterhouseCoopers LLP shall state any specific changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers LLP has carried out certain other specified procedures, not constituting an audit, with the amounts shown in the most recent consolidated statement of respect to certain amounts, percentages and financial condition of the Company and its subsidiaries information which are included or incorporated by reference in the Registration Statement and Final Prospectus and which are specified by the Final Prospectus; except in all instances for increases or decreases set forth in such letter, in which case the letter shall be aRepresentatives and agreed to by Pricewaterh
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; each of Bank of America, N.A. and Fleet National Bank ("Principal Subsidiary Banks") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and each of the Principal Subsidiary Banks is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or each of the Principal Subsidiary Banks, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of each of the Principal Subsidiary Banks have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of each of the Principal Subsidiary Banks (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Indenture Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 sky, securities or insurance or similar laws of any jurisdiction the United States in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default underunder the certificate of incorporation or by-laws of the Company, each as amended to date, or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named any Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or any Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Subsidiary Company or any Principal Subsidiary Bank; and
(xii) such counsel is without knowledge of their respective properties, the effect of which would be material any rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company under Rule 101 of the Code of Professional Conduct of the Public Company Accounting Oversight Board (United States), and the applicable interpretations and rulings.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇Bank of America, N.A. as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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 Prospectusspecific items for which representations are requested below, nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information of the Company and its subsidiaries, if anycondensed consolidated interim financial statements, included or incorporated by reference 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, for them to be in conformity with generally accepted accounting principles;
(II3) with respect to the period subsequent to (i) at the date of the most recent latest available interim financial statements included in data and at 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 five business days prior to the date of the delivery of such letter, there was any decrease change in the capital common stock or additional paid-in capital, or increase in the consolidated long-term indebtedness debt (other than scheduled repayments of such debt) of the Company and its subsidiaries, the subsidiaries on a consolidated basis 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 aamoun
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance or similar laws of any jurisdiction the United States in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the common stock or the consolidated long-term debt (other than scheduled repayments of such debt) of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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.
(Cii) (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 for the period subsequent to from 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 aavail
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Securities Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy in all material respects of and compliance with the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing DateTime, to the accuracy of any material the statements of the Company’s officers made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President and Deputy General Counsel of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit B hereto.
(3) An opinion, dated the day of the Closing Time, of Debevoise & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for U.S. Bank Trust National Association, as the Trustee, Subordination Agent and Loan Trustee under the Indentures and Paying Agent in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit D hereto.
(5) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇ ("& ▇▇▇▇▇▇▇ LLP, counsel for U.S. Bank National Association, as the Escrow Agent in form and substance reasonably satisfactory to counsel for the Underwriters' Counsel") pursuant to this Section 6, together with signed or reproduced copies of such letter for each of the other Underwriters to the performance by effect set forth in Exhibit E hereto.
(6) An opinion, dated the Company day of its respective obligations hereunder the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., tax counsel for the Trustee, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F-1 hereto.
(7) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Trustee, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F-2 hereto.
(8) An opinion, dated the day of the Closing Time, of Christian de Le Hir, counsel for the Liquidity Provider, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit G hereto.
(9) An opinion, dated the day of the Closing Time, of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Liquidity Provider, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit H hereto.
(10) An opinion, dated the day of the Closing Time, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, in-house counsel for the Depositary, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit I hereto.
(11) An opinion, dated the day of the Closing Time, of ▇▇▇▇▇ ▇▇▇▇ LLP, New York counsel for the Depositary, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit J hereto and to such further effect as counsel to the following additional conditions:Underwriters may reasonably request.
(a12) An opinion, dated the day of the Closing Time, from Shearman & Sterling LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters may reasonably require.
(b) 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 424(b) under the second business day following Act within the date of this Agreement or applicable time period prescribed for such later date and time as shall be consented to in writing filing 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 rules 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 regulations 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 termsSection 3(a) hereof; and the Securities have been duly authorized, executed and issued final term sheet contemplated by the CompanySection 3(a) hereof, 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 any 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 material 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.
(viiiRule 433(d) The Registration Statement has become effective under the Securities Act, and, to shall have been filed with the best of Commission within the knowledge of applicable time periods prescribed for such counsel, filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement has or any part thereof shall have been issued and no proceeding for that purpose is pending shall have been initiated or, to the knowledge of the Company, threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or, to the knowledge of the Company, threatened by the Commission.; and all requests for additional information by the Commission shall have been complied with to your reasonable satisfaction;
(ixc) The Registration StatementOn or after the date hereof, there shall not have been (i) any change or decrease, specified in the Final Prospectus and each amendment thereof letters referred to in paragraph (d) of this Section 4 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 thereinii) 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 distributionany change, or any development involving a prospective change, in or affecting 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 business or 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 subsidiaries, taken as a foreign corporationwhole, is the effect of which, in good standing any case referred to in clause (i) or (ii) above, is, in your reasonable judgment, so material and is duly registered adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Pricing Disclosure Package and the Prospectus; and you shall have received a broker-dealercertificate of the President, brokeran Executive Vice President, dealer a Senior Vice President or investment advisora Vice President of the Company, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, in the case may beof clause (ii) above, 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 subsidiaries, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company contained in the Operative Documents are true and correct with the same force and effect as a wholethough made at such Closing Time, and as to such other matters as you may reasonably request.
(xiid) All At the outstanding shares of capital stock time 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 execution of this Agreement or is required to be disclosed in and also at 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 accuracyClosing Time, 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) Ernst & Young LLP shall have furnished to you a letter or letters, dated the Registration Statement, as respective dates 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 thereindelivery thereof, in the light form and substance reasonably satisfactory to you, together with signed or reproduced copies of such letter or letters for each of the circumstances under which they were made, not misleading (except that no opinion need be expressed as other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the Underwriters with respect to the financial statements or other and certain financial or statistical data or information contained in the Form T-1 included or incorporated by reference therein). In rendering such opinionPricing Disclosure Package and the Prospectus, such counsel may rely upon opinions and (ii) you shall have received a certificate of local counsel satisfactory to the Representatives for matters not governed by New York law ▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President and may rely as to matters of fact, to the extent he deems proper, upon certificates or affidavits of officers Chief Financial Officer of the Company, dated the Trustee and public officials. Such counsel may rely on a certificate respective dates thereof, substantially in the form of the Trustee with respect to the execution of the Securities by the Company and the authentication thereof by the TrusteeExhibit K hereto.
(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 you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representatives purpose of enabling such counsel to pass upon the matters to be covered by the opinions required to be delivered under subsections (a)(11) and (a)(12) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a certificate of its Chief Executive Officerletter from such Appraiser, its President or any Managing Director or Vice President addressed to the Company and its Chief Financial Officer or its Treasurer, dated the day of the Closing DateTime, to the effect that, to the best confirming that such Appraiser and each of their knowledge after due inquiry:
its directors and officers (i) The representations and warranties is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) At Closing Time, (i) the Class A Certificates shall be rated at least A- by Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business (“S&P”) and Baa2 by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”), respectively, and (ii) the Class B Certificates shall be rated at least BBB- by S&P and Ba2 by Moody’s, respectively, and in each case such ratings shall not be under surveillance or review with possible negative implications.
(h) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects reasonably satisfactory to you and your counsel. If any condition specified in this Agreement are true and correct in all material respects on Section shall not have been fulfilled when and as required to be fulfilled, other than by reason of the Closing Date with the same effect as if made on the Closing Dateany default by any Underwriter, and such failure to fulfill a condition may be waived by you, or this Agreement may be terminated by you by notice to the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at any time 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 misleadingTime, and (z) since the effective date such termination shall be without liability of the Registration Statement there has not occurred any event required party to be set forth any other party, except as provided in an amended or supplemented prospectus Sections 5, 7 and 10 hereof, which has not been so set forth. 14
(g) At the Closing Date, a nationally recognized firm of independent public accountants provisions 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 remain 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 thereundernotwithstanding such termination.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Preliminary Final Prospectus and the Final Prospectus, and any supplement thereto, 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, shall have been filed with the Commission pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or suspending the qualification of the Indenture, any notice that would prevent its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative their opinion, dated the day of Closing Date and addressed to the Closing DateRepresentative, to the effect that:
(i) The 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 and as a corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized, with all requisite full corporate or limited liability company 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 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) The Securities 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 Indenture conform 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 than Spirit Master Funding, LLC) and, to 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 the Final Prospectus; the capital stock of the Company conforms in all material respects to the descriptions description thereof contained in the Disclosure Package and the Final Prospectus.
(iii) The Indenture has ; the outstanding shares of Common Stock have been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act validly authorized and constitutes a legal, valid issued and binding instrument enforceable against the Company in accordance with its termsare fully paid and nonassessable; and the Securities have been duly and validly authorized, executed and, when issued and issued delivered to and paid for by the Company, and assuming due authentication by the Trustee and upon payment and delivery in accordance with the Underwriting Underwriters pursuant to this Agreement, will constitute legalbe 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 binding obligations 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 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.Securities;
(iv) No consentto the knowledge of such counsel, approvalthere is no pending or threatened action, authorization suit or order of proceeding by or before any court or governmental agency 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 for to be described in the consummation 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- Risk Related to Our Organization and Structure,” “Risk Related to Our REIT Status,” and Items 14 and 15 of the transactions contemplated in this AgreementRegistration Statement, except for (1) insofar as such consentsstatements summarize legal matters, approvalsagreements, authorizations documents or orders as have been obtained under the Securities Act proceedings discussed therein, are accurate and fair summaries of 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 Underwriterslegal matters, and (2) the qualification of the Indenture under the Trust Indenture Actagreements, which has been obtained.documents or proceedings;
(v) Such counsel does not know 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 any contracts or other documents which are required the Code, and the Company’s current and proposed method of operation will enable it to be filed continue to meet the requirements for qualification and taxation as exhibits to a REIT under 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.Code;
(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; any required filing of the Basic Prospectus, andany Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the best of 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 and issued, no proceeding proceedings for that purpose is pending have been instituted or threatened by threatened, and the Commission.
(ix) The Registration Statement, the Preliminary Final Prospectus and each amendment thereof or supplement thereto the Final Prospectus (except that no opinion need be expressed as to other than the financial statements or and other financial or and statistical data or the Form T-1 of the Trustee under the Trust Indenture Act included or incorporated by reference 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 Securities Act and the Rules.
(x) If Exchange Act and 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, respective rules thereunder; 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 Effective Date 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) that the Final Prospectus contains 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 any a 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 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 by-laws 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 statistical data otherwise), prospects, earnings, business or properties of the Form T-1 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 description 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 presents the information required to be shown with respect to such plans, arrangements, options and rights;
(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 or incorporated in the offering contemplated by reference therein)the Underwriting 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 opinions the opinion of local other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters and may rely (B) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and public officials. Such counsel may rely on a certificate of the Trustee with respect References to the execution of Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Securities by the Company and the authentication thereof by the TrusteeClosing Date.
(ec) The Representatives Representative shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentative, 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 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its the Company, signed by the Chairman of the Board or the President/Chief Executive Officer, its President or any Managing Director or Vice President Officer and its the Chief Financial Officer or its Treasurerof the Company, dated the day of 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 or incorporated by reference in the Registration Statement and the Final Prospectus and extending through the latest date as (exclusive 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5any supplement thereto), there has been any decrease in such amounts as compared with no material adverse effect on the amounts shown in the most recent consolidated condition (financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three or otherwise), prospects, earnings, 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 properties of the Company and its subsidiaries, taken as compared with the amounts shown a whole, whether or not arising from transactions in the most recent consolidated statement 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 each of Ernst & Young LLP and Deloitte & Touche LLP to have furnished to the 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, in form and substance satisfactory to the 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 condition or otherwise), earnings, business or properties of the Company and its subsidiaries included 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 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; except Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in all instances for increases or decreases set forth in such letter, in which case the letter shall be arating of any of the Company’s debt securities by
Appears in 1 contract
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 Company contained herein as of the date hereof and Applicable Time, the Closing DateDate and any Option Closing Date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Preliminary Final Prospectus and the Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission pursuant to within the applicable time periods prescribed for such filings by Rule 424 not later than 5:00 p.m., New York City time, on 433; and the second business day following the date of this Agreement or such later date Registration Statement is effective and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or suspending the qualification of the Indenture, any notice that would prevent its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(cb) 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.[Reserved]
(dc) The Company shall have requested and caused ▇▇▇▇▇▇▇ Coie LLP, United States counsel for the Company, to have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect that:
(i) The Company Registration Statement became effective upon its filing with the Commission. To such counsel’s knowledge, no stop order suspending effectiveness of the Registration Statement has been duly organized and is validly existing and in good standing issued under the laws Act, and no proceedings for this purpose have been instituted or are pending or threatened by the Commission. Any required filing of the jurisdiction of its incorporation with all requisite corporate power Preliminary Final Prospectus and authority the Final Prospectus and any supplement thereto pursuant to own and operate its properties and to conduct its business as described Rule 424(b) under the Act has been made in the manner and within the time period required by Rule 424(b) (without reference to 424(b)(8)). Without independent verification of the factual accuracy, completeness or fairness of any statements made in the Registration Statement, the Preliminary Final Prospectus.
(ii) The Securities Prospectus and the Indenture conform Final Prospectus each (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need express no opinion), appears on its face to be appropriately responsive in all material respects to the descriptions thereof contained requirements of the Act and the applicable rules and regulations of the Commission thereunder;
(ii) The statements set forth in the Preliminary Final ProspectusProspectus and the Final Prospectus under the caption “Risk Factors—Tax Risks— We, Or Any Of Our Subsidiaries, May Become Subject To Income Tax In Jurisdictions In Which We Are Organized Or Operate, Including The United States, Canada And Hong Kong, Which Would Reduce Our Earnings And Potentially Cause Certain Shareholders To Be Subject To Tax In Such Jurisdictions,” and “Risk Factors—Tax Risks— U.S. Tax Authorities Could Treat Us As A “Passive Foreign Investment Company,” Which Could Have Adverse U.S. Federal Income Tax Consequences To U.S. Shareholders.” insofar as such statements summarize legal matters discussed therein, are, in all material respects, accurate summaries of such legal matters; and the description of the statutes and regulations set forth in the Preliminary Final Prospectus and the Final Prospectus under the caption “Business—Environmental and Other Regulations—United States,” accurately describes in all material respects the portions of the statutes and regulations addressed thereby; provided, however, that such counsel need express no opinion with respect to any laws other than those of the United States;
(iii) The Indenture has been duly authorized, executed statements in the Preliminary Final Prospectus and delivered by the Final Prospectus under the captions “Business—Taxation of the Company—United States Taxation” and “Certain Material United States Federal Income Tax Considerations,” with respect to legal matters or legal conclusions, has been duly qualified under in all material respects, is an accurate discussion of the Trust Indenture Act material U.S. federal income tax considerations addressed therein (we do not opine or comment on the representations 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 statements of fact of the Company entitled included in such discussion.). The opinion of ▇▇▇▇▇▇▇ Coie LLP to be filed as Exhibit 8.1 to the benefits of the Indenture; provided however, that the foregoing is subject Report on Form 6-K furnished to the effects of bankruptcyCommission on or before the Closing Date, 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) be incorporated by reference into the Registration Statement is confirmed and by an implied covenant of good faith and fair dealing.the Underwriters may rely on such as if it were addressed to them;
(iv) No consentInsofar as matters of United States Federal law are concerned, approvalto such counsel’s knowledge, authorization or order of any court (i) there are no legal or governmental agency proceedings pending or body threatened against the Company or to which the Company is a party or to which any of its properties is subject that are required to be described in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus but are not so described as required and (ii) there are no agreements, contracts, indentures, leases or other documents or instruments that are required to be described in the Registration Statement, the Preliminary Final Prospectus or the Final Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(v) The Company is not, and immediately upon receipt of payment for the Securities, and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(vi) All consents, approvals, authorizations or other orders of, or registrations or filings on the part of the Company with any United States federal governmental or regulatory authority required for the issuance of the Securities and the consummation of the transactions contemplated in this Agreement, the Preliminary Final Prospectus and the Final Prospectus have been made or obtained, or will be effective as of the date of the opinion;
(vii) Without independent verification of the factual accuracy, completeness or fairness of any statements made therein, the documents incorporated or deemed to be incorporated by reference into the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, when each became effective or was filed with the Commission, as the case may be, each (except for (1) the financial statements and financial schedules, and other financial and statistical information included therein, as to which such consentscounsel need express no opinion), approvals, authorizations or orders as have been obtained under appears on its face to be appropriately responsive in all material respects to the Securities Act and such as may be required under requirements of the Exchange Act and the blue sky laws applicable rules and regulations of any jurisdiction in connection with the purchase Commission thereunder;
(viii) The issue and distribution sale 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 Company pursuant 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 (i) result in a breach or the creation or imposition of any material lien, charge or encumbrance upon any of the property or assets of the Company or its Named Subsidiary pursuant to the terms ofof any indenture, or constitute a default undercontract, any material lease, mortgage, deed of trust, note agreement, indenture loan agreement or other agreement or instrument known filed as an exhibit to such counsel and the Registration Statement (including any document filed as an exhibit to any document incorporated by reference into the Registration Statement) to which the Company or its Named Subsidiary is a party or bound or to which its property is boundsubject, which breaches or result impositions of such lien, charge or encumbrance would, individually or in the aggregate, reasonably be expected to have a violation of the corporate charter Material Adverse Effect; or by-laws of the Company or its Named Subsidiary or (ii) violate any ordergenerally applicable statute, law, rule or regulation known (other than U.S. federal securities, state or foreign securities or blue sky or anti-fraud statutes, laws, rules or regulations, laws and regulations relating to commodity (and other) futures and indices and other similar instruments, and the rules and regulations of FINRA), or any judgment, order or decree to the knowledge of such counsel applicable to the Company of any court court, regulatory body, administrative agency, governmental body, arbitrator or governmental agency other authority having jurisdiction over the Company, its Named Subsidiary Company or any of their respective its properties, which violations would, individually or in the effect of which would aggregate, reasonably be material expected to the Company and its subsidiaries taken as have a whole.Material Adverse Effect; and
(viiiix) The Except as disclosed in the Registration Statement has become effective under Statement, the Securities Act, andPreliminary Final Prospectus and the Final Prospectus, to the best of the knowledge of such counsel, no stop order suspending the effectiveness holders of securities of the Company have current rights to the registration of such securities under the Registration Statement Statement. In addition, such counsel shall state that, such counsel has been issued participated in conferences with officers and no proceeding for that purpose is pending or threatened by other representatives of the Commission.
(ix) The Company, representatives of the Underwriters and representatives of the independent auditors of the Company at which the contents of the Registration Statement, the Preliminary 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 thereinany amendments or supplements thereto were discussed. Such opinion counsel shall also contain a statement that state that, although such counsel is not passing upon and does not assume any assumes no responsibility for the factual accuracy, completeness or fairness of the any statements contained in the Registration Statement and the Final Prospectus (except other than as to those matters stated set forth in paragraph (ii) of and (iii) above, subject to the assumptions, exclusions and qualifications set forth in such counsel’s opinion), such counsel has no reason to believe that ) made in (ia) the Registration StatementStatement or any amendment thereto, (b) the Preliminary Final Prospectus or any amendment or supplement thereto, (c) the Final Prospectus or any amendment or supplement thereto, or (d) the documents incorporated by reference in the Registration Statement or any further amendment or supplement thereto, nothing has come to such counsel’s attention that causes such counsel to believe that:
a. the Registration Statement or the prospectus included therein (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as of its effective date, most recent 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) or
b. the Final Prospectus does (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not contain comment) as of its date, or as amended or supplemented, if applicable, as of the Closing Date or the Option Closing Date, as the case may be, contained or contains any untrue statement of a material fact or omit omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, or
c. the Disclosure Package (except for any financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as of its date or as amended or supplemented, if applicable, as of the Applicable Time contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Company and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (zC) since state that their opinion is limited to United States Federal laws. References to the effective date of Final Prospectus in this paragraph (c) shall also include any supplements thereto at the Registration Statement there has not occurred any event required to be set forth in an amended Closing Date or supplemented prospectus which has not been so set forth. 14
(g) At the Option Closing Date, a nationally recognized firm of independent public accountants as the case may be.
(d) The Company shall have requested and caused Farris, Vaughan, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Canadian tax counsel for the Company, to have furnished to the Representatives a lettertheir opinion, dated the day of Closing Date or the Option Closing Date, confirming that they are independent auditors with respect to as the Company within the meaning of the Securities Act case may be, and in form and substance satisfactory addressed to the Representatives, stating in to the effect that:
(i) In their opinion, the consolidated financial All statements of legal conclusions contained under the Company and its subsidiaries, and the supporting schedules, included caption “Non-United States Tax Considerations—Canadian Federal Income Tax Considerations” in the Registration Statement Preliminary Final Prospectus and the Final Prospectus are correct and audited by them comply accurate with respect to the matters set forth therein as of the Closing Date or the Option Closing Date, as the case may be, and such counsel is of the opinion that the statements under the caption “Non-United States Tax Considerations—Canadian Federal Income Tax Considerations” in the Preliminary Final Prospectus and the Final Prospectus, with respect to those matters as to form which no legal conclusions are provided, are an accurate discussion of the Canadian federal income tax matters applicable to those holders who acquire Securities in all material respects connection with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder.offering thereof;
(ii) On the basis of a reading of the unaudited consolidated financial The statements of the Company and its subsidiaries, if any, included set forth in the Registration Statement Preliminary Final Prospectus and the Final Prospectus and under the caption “Business—Taxation of the latest unaudited consolidated financial statements Company—Canadian Taxation” accurately describe the Canadian income tax matters described therein; provided, however, with respect to the opinion referred to in the immediately preceding sentence only, such counsel need express no opinion or comment on any representation or statement of fact, intention or assumption, or of risk (except to the extent of any conclusion of law set out under such caption), or of a general nature (except to the extent of any conclusion of law set out under such caption), made available by or on behalf of the Company in the Preliminary Final Prospectus or the Final Prospectus including, but without restricting the generality of the forgoing, the following statements under such caption: “It is not our current intention that our central management and control be exercised in Canada”; “Based on our operations, we do not believe that we are, nor do we expect to be, resident in Canada for purposes of the Canada Tax Act, and we intend that our affairs will be conducted and operated in a manner such that we do not become a resident of Canada under the Canada Tax Act”; “A Canadian resident corporation that carries on an international shipping business, as described in the previous sentence, in the Republic of The ▇▇▇▇▇▇▇▇ Islands is exempt from income tax under the current laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands”; “We expect that we will qualify for these statutory exemptions under the Canada Tax Act. Based on our operations, we do not believe that we are, nor do we expect to be, carrying on a business in Canada for purposes of the Canada Tax Act other than a business that would provide us with these statutory exemptions from Canadian income tax” and “Based on our operations, we do not believe that the Draft Proposals would, if enacted into law in the form currently proposed, result in us becoming resident in Canada for purposes of the Canada Tax Act, nor result in our business income becoming subject to Canadian income tax”. The opinion of such counsel set forth in the two preceding paragraphs may be based on the provisions of the Canada Tax Act and the regulations thereunder in force as of the date of such opinion, all specific proposals to amend the Canada Tax Act and the regulations thereunder which have been publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date of such opinion (the “Proposed Amendments”) and such counsel’s understanding of existing case law and the current published administrative policies and assessing practices of the Canada Revenue Agency. There can be no assurance that the Proposed Amendments will be implemented in their current form or at all. Such opinion will not otherwise take into account or anticipate any changes in law, whether by legislative, governmental or judicial decision or action, and will not take into account provincial, territorial or foreign tax legislation or considerations; References to the Final Prospectus in this paragraph (d) shall also include any supplements thereto at the Closing Date or the Option Closing Date, as the case may be.
(e) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 subsidiariesP.C., 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 ▇▇▇▇▇▇▇▇ determined pursuant Islands counsel for the Company, to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 have furnished 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 aRep
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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), shall have been filed with the Commission pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of Closing Date and addressed to the Closing DateRepresentatives, to the effect that:
(i) The Company the Registration Statement is an “automatic shelf registration statement” (as defined under Rule 405) that has been duly filed with the Commission not earlier than three years prior to the date of the Underwriting Agreement; the Indenture has been qualified under the Trust Indenture Act; each Preliminary Prospectus and the Final Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein; and no order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering of the Securities is pending or, to the knowledge of such counsel, threatened by the Commission; and the Registration Statement and the Final Prospectus (other than the financial statements and other financial 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 Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder.
(ii) each of the Company and the Significant Subsidiaries that is incorporated or organized and under the laws of a United States jurisdiction is validly existing and as a corporation in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized, with all requisite full corporate 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 Disclosure Package and the Final Prospectus., and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where such failure to be so qualified would not result in a Material Adverse Effect;
(iiiii) The the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.;
(iiiiv) The the Indenture has been duly authorized, executed and delivered delivered, and, assuming due authorization, execution and delivery of the Indenture by the CompanyTrustee, 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; terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(v) the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting 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 Company entitled to the benefits of the Indenture; provided however;
(vi) to such counsel’s knowledge, that 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 foregoing Company or any of its subsidiaries or its or their property, of a character required to be disclosed pursuant to Item 103 of Regulation S-K in the Company’s periodic reports filed under the Exchange Act which is subject not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit to the effects Registration Statement, which is not described or filed as required, and to the extent that they constitute matters of bankruptcylaw, insolvencysummaries of legal matters or legal conclusions, fraudulent conveyance, reorganization, moratorium the statements set forth in the Preliminary Prospectus and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations” are accurate in a proceeding in equity or at law) all material respects and by an implied covenant of good faith and fair dealing.fairly present the information provided;
(ivvii) No 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 Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization authorization, order, registration or order qualification of or with any court or arbitrator or governmental agency or body regulatory authority is required for to be obtained by the consummation of Company in connection with the transactions contemplated in this Agreementherein, except for (1) the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations authorizations, orders and registrations or orders as have been obtained under the Securities Act and such qualifications as may be required under the Exchange Act and the blue sky laws of any United States state jurisdiction or the securities laws of any foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, ;
(x) neither the execution and (2) the qualification delivery of the Indenture under Indenture, the Trust Indenture Actissue and sale of the Securities, which has been obtained.
(v) Such counsel does not know nor the consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated (including 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 consummation by the Company of its obligations under the Concurrent Transactions) nor the fulfillment of the terms hereof will not conflict with, or result in the creation a breach or violation of, or imposition of any material lien, charge or encumbrance upon any of the property or assets of the Company or its Named any Significant Subsidiary pursuant to to, (i) 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 any Significant Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or any orderother agreement, rule obligation, condition, covenant or regulation instrument known to such counsel to which the Company or any Significant Subsidiary 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 any Significant Subsidiary of any court court, regulatory body, administrative agency, governmental body, arbitrator or governmental agency other authority having jurisdiction over the Company, its Named Company or any Significant Subsidiary or any of their respective properties, except in the effect case of which clauses (ii) and (iii) for such breaches, violations or defaults that could not adversely affect in a material respect the ability of the Company to perform its obligations under this Agreement, or would otherwise not be material in the context of the sale of the Securities; and
(xi) to such counsel’s knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under independent accountants and counsel at which conferences the Securities Act, and, to the best contents 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 Disclosure Package and the Final Prospectus and each any amendment thereof or and 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 related matters were discussed 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 assumes no responsibility for the accuracy, completeness or fairness of the statements contained in Registration Statement, the Registration Statement and Disclosure Package, the Final Prospectus and any amendment or supplement thereto (except as to those matters stated in paragraph (ii) of such opinionexpressly provided above), no facts have come to such counsel’s attention that cause such counsel has no reason to believe that (i) at the Effective Date immediately preceding the Execution Time, the Registration StatementStatement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, as of its effective date(ii) the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading or and (iiiii) the Final Prospectus or any amendment or supplement thereto, as of its date and the Closing Date, contains any untrue statement of a material fact or omits to state any a 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 other than, in each case, the financial statements or statements, related schedules and other financial or statistical data or the Form T-1 included or incorporated by reference therein, as to which such counsel need express no belief). 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, 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 opinions the opinion of local other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters and may rely (B) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and public officials. Such counsel may rely on a certificate of the Trustee with respect References to the execution of Final Prospectus in this Section 7(b) shall also include any supplements thereto at the Securities by the Company and the authentication thereof by the TrusteeClosing Date.
(ec) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the 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.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, solely in their respective capacities as such, dated the day of 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, and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 threatenedincorporated by reference in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time).
(xe) 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, Company shall have requested 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 Deloitte & Touche LLP shall have furnished to the Representatives a letterRepresentatives, at the Execution Time and at the Closing Date, “comfort” letters, dated as of the day date of this Agreement and as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent auditors with respect to the Company registered public accounting firm within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have audited the consolidated financial information of the Company for the year ended December 31, 2017, in form accordance with the standards of the Public Company Accounting Oversight Board (United States), and substance satisfactory to the Representatives, stating in effect that:
(i) In in their opinion, opinion the consolidated audited financial statements of the Company and its subsidiaries, and the supporting schedules, included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus and audited reported on 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.adopted by the Commission;
(ii) On on the basis of a reading their audit of the unaudited consolidated financial statements of information for the Company and its subsidiariesyear ended December 31, if any2017, included in the Registration Statement Preliminary Prospectus and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇, Prospectus; carrying out certain specified procedures (but not an audit 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 committee of the Company and ▇▇▇▇▇▇, Company; 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, 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 ProspectusDecember 31, 2017, nothing came to their attention that which caused them to believe that:
(A1) any audited financial statements of the Company 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 Securities Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in the annual report on Form 10-K under the Exchange Act; and said audited financial statements are not in conformity with GAAP; and
(2) (i) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if anystatements, included in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; GAAP, and such (ii) the unaudited 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, related rules and regulations thereunder.adopted by the Commission; and
(Biii) 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 unaudited capsule information general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, if any, included in the Registration Statement and excluding any questions of legal interpretation. References to 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.
(Cthis Section 7(e) (I) as of the latest date as of which the Company and its subsidiaries have monthly financial statements, there was include 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 asupplement
Appears in 1 contract
Sources: Underwriting Agreement (SNAP-ON Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect that:of paragraphs (i) and (iv) through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below: <page> 5
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; <page> 6
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and <page> 7
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, 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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or complied with all the <page> 8 agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by <page> 9 reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information of the Company and its subsidiaries, if anycondensed consolidated interim financial statements, included or incorporated by reference 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., for them to be in conformity with generally accepted accounting principles;
(C3) (Ii) as at the date of the latest available interim financial data and at the specified date as not more than five business days prior to the date of which the Company and its subsidiaries have monthly financial statementsdelivery of such letter, there was any decrease change in the capital stock, additional paid-in capital stock or related earnings, or increase in the long-term indebtedness debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and its subsidiaries, the subsidiaries on a consolidated basis as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries latest balance sheet included or incorporated by reference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 aProsp
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Bonds shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuer and APCo contained herein in this Underwriting Agreement, on the part of APCo contained in Article III of the Sale Agreement, and on the part of APCo contained in Section 6.01 of the Servicing Agreement as of the date hereof and the Closing Date, to the accuracy of any material the statements of the Issuer and APCo made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company Issuer and APCo of its respective their obligations hereunder hereunder, and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 not no later than 5:00 p.m., New York City time, on the second business day following the date it is first used after effectiveness in connection with the sale of this Agreement or such later date and time as shall the Bonds. In addition, all material required to be consented to in writing filed by the RepresentativesIssuer or APCo pursuant to Rule 433(d) under the Securities Act that was prepared by either of them or that was prepared by any Underwriter and timely provided to the Issuer or APCo shall have been filed with the Commission within the applicable time period prescribed for such filing by such Rule 433(d).
(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 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 shall be in effect, and no proceeding proceedings for that purpose is shall be pending before, or threatened by the Commission.
(ix) The Registration Statementby, the Final Prospectus Commission on the Closing Date; and each amendment thereof the Underwriters shall have received one or supplement thereto (except more certificates, dated the Closing Date and signed by an officer of APCo and the Issuer, as appropriate, to the effect that no opinion need be expressed as such stop order is in effect and that no proceedings for such purpose are pending before, or to the financial statements or other financial or statistical data knowledge of APCo 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 advisorIssuer, as the case may be, in each jurisdiction in which threatened by, 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 wholeCommission.
(xiic) 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 andHunton & ▇▇▇▇▇▇▇▇ LLP, 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 accuracyUnderwriters, 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 shall have furnished 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 opinionstheir written opinion, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesBonds, the Indenture, the other Issuer Documents, the Registration Statement, the Final Prospectus Statement and other related matters matters; and such counsel shall have received such papers and information as the Representatives they may reasonably require, and the Company shall have furnished request to such counsel such documents as they request for the purpose of enabling enable them to pass upon such matters.
(fd) The Company ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Issuer, 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 Treasurertheir written opinion (substantially in the form attached as Annex I (d) hereto), dated the day of the Closing Date, regarding the authority to file a voluntary bankruptcy petition.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Issuer, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (e) hereto), dated the Closing Date, regarding certain Delaware Uniform Commercial Code matters.
(f) Sidley Austin LLP, counsel for the Issuer and APCo, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (f) hereto), dated the Closing Date, regarding certain aspects of the transactions contemplated by the Issuer Documents, including the Indenture and the Trustee’s security interest under the Uniform Commercial Code.
(g) Sidley Austin LLP, counsel for the Issuer and APCo, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (g) hereto), dated the Closing Date, regarding negative assurances and other corporate matters.
(h) Sidley Austin LLP, counsel for the Issuer and APCo, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (h) hereto), dated the Closing Date, i) to the effect thatthat a court sitting in bankruptcy would not order the substantive consolidation of the assets and liabilities of the Issuer with those of APCo in connection with a bankruptcy, reorganization or other insolvency proceeding involving APCo, ii) that if APCo were to become a debtor in such insolvency proceeding, such court would hold that the best CRR Property is not property of their knowledge after due inquiry:the estate of APCo and iii) regarding bankruptcy and corporate governance matters.
(i) The representations ▇▇▇▇▇▇▇ ▇▇▇▇▇ PLLC, counsel for the Issuer and warranties of APCo, shall have furnished to the Company Representatives their written opinion (substantially in this Agreement are true and correct in all material respects on and the form attached as of the Closing Date with the same effect as if made on Annex I (i) hereto), dated the Closing Date, regarding certain West Virginia constitutional matters relating to the CRR Property.
(j) Sidley Austin LLP, counsel for the Issuer and APCo, shall have furnished to the Company has complied with all Representatives their written opinion (substantially in the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to form attached as Annex I (j) hereto), dated the Closing Date, regarding certain federal tax matters.
(iik) No stop order suspending ▇▇▇▇▇ ▇▇▇▇▇▇ PLC, Virginia Counsel for APCo, shall have furnished to the effectiveness of Representatives their written opinion (substantially in the Registration Statement has been issued form attached as Annex I (k) hereto), dated the Closing Date, with respect to additional corporate matters and no proceedings for that purpose have been instituted or threatenedUCC matters].
(xl) The Registration Statement does not contain any untrue statement of a material fact or omit ▇▇▇▇▇▇▇ ▇▇▇▇▇ PLLC, counsel for the Issuer and APCo, shall have furnished to state any material fact required to be stated therein or necessary to make the statements therein not misleading, Representatives their written opinion (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, substantially in the light form attached as Annex I (l) hereto), dated the Closing Date, with respect to the characterization of the circumstances under which they were madetransfer of the CRR Property by APCo to the Issuer as a “true sale” for West Virginia law purposes.
(m) Sidley Austin LLP, not misleadingcounsel for the Issuer and APCo, shall have furnished to the Representatives its written respective opinions (substantially in the form attached as Annex I (m) hereto), dated the Closing Date, regarding certain federal constitutional matters relating to the CRR Property.
(n) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Indenture Trustee, shall have furnished to the Representatives their written opinions (each substantially in the form attached as Annex I (n) hereto), dated the Closing Date, regarding certain matters relating to the Indenture Trustee.
(o) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC, counsel for APCo and the Issuer, shall have furnished to the representatives their opinion (zsubstantially in the form attached as Annex I (o) since hereto), dated the effective Closing Date, regarding certain West Virginia regulatory issues.
(p) ▇▇▇▇▇▇▇ ▇▇▇▇▇ PLLC, counsel for the Issuer and APCo, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (p) hereto), dated the Closing Date, regarding enforceability and certain West Virginia perfection and priority issues.
(q) Sidley Austin LLP, counsel for the Issuer and APCo, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (q) hereto), dated the Closing Date, regarding certain bankruptcy matters relating to the Issuer.
(r) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the Issuer and APCo, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (r) hereto), dated the Closing Date, regarding certain matters of Delaware law.
(s) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC, counsel to the Issuer and APCo, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (t) hereto), dated the Closing Date, regarding certain West Virginia tax matters.
(t) On or before the date of the Registration Statement there has not occurred any event required to be set forth in an amended this Underwriting Agreement and on or supplemented prospectus which has not been so set forth. 14
(g) At before the Closing Date, a nationally recognized accounting firm of independent public accountants reasonably acceptable to the Representatives shall have furnished to the Representatives one or more reports regarding certain calculations and computations relating to the Bonds, in form or substance reasonably satisfactory to the Representatives, in each case in respect of which the Representatives shall have made specific requests therefor and shall have provided acknowledgment or similar letters to such firm reasonably necessary in order for such firm to issue such reports.
(u) The LLC Agreement, the Administration Agreement, the Sale Agreement, the Servicing Agreement and the Indenture and any amendment or supplement to any of the foregoing shall have been executed and delivered.
(v) Since the respective dates as of which information is given in each of the Registration Statement and in the Pricing Prospectus and as of the Closing Date there shall have been no (i) material adverse change in the business, property or financial condition of APCo and its subsidiaries, taken as a letterwhole, dated whether or not in the day ordinary course of business, or of the Issuer or (ii) adverse development concerning the business or assets of APCo and its subsidiaries, taken as a whole, or of the Issuer which would be reasonably likely to result in a material adverse change in the prospective business, property or financial condition of APCo and its subsidiaries, taken as a whole, whether or not in the ordinary course of business, or the of Issuer or (iii) development which would be reasonably likely to result in a material adverse change, in the CRR Property, the Bonds or the Financing Order.
(w) At the Closing Date, (i) the Bonds shall be rated at least the ratings set forth in the Pricing Term Sheet by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business (“S&P”), respectively, and the Issuer shall have delivered to the Underwriters a letter from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Bonds have such ratings, and (ii) neither Moody’s nor S&P shall have, since the date of this Underwriting Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Bonds.
(x) The Issuer and APCo shall have furnished or caused to be furnished to the Representatives at the Closing Date certificates of officers of APCo and the Issuer, reasonably satisfactory to the Representatives, as to the accuracy of the representations and warranties of the Issuer and APCo herein, in the Sale Agreement, Servicing Agreement and the Indenture at and as of the Closing Date, confirming that they are independent auditors with respect as to the Company within performance by the meaning Issuer and APCo of all of their obligations hereunder to be performed at or prior to such Closing Date, as to the matters set forth in subsections (b) and (y) of this Section and as to such other matters as the Representatives may reasonably request.
(y) The final issuance advice letter, in a form consistent with the provisions of the Securities Act Financing Order, shall have been filed with the WVPSC and the period during which the WVPSC may issue a disapproval letter shall have expired without the issuance thereof.
(z) On or prior to the Closing Date, the Issuer shall have delivered to the Representatives evidence, in form and substance reasonably satisfactory to the Representatives, stating that appropriate filings have been or are being made in effect that:accordance with the West Virginia Securitization Law (W. Va. Code § 24-2-4f), the Financing Order and other applicable law reflecting the grant of a security interest by the Issuer in the collateral relating to the Bonds to the Indenture Trustee, including the filing of the requisite notices in the office of the Secretary of State of the State of West Virginia, [the Secretary of State of the State of Delaware and the State Corporation Commission of the Commonwealth of Virginia].
(iaa) In their opinionOn or prior to the Closing Date, APCo shall have funded the consolidated financial statements capital subaccount of the Company Issuer with cash in an amount equal to $[ ].
(bb) The Issuer and its subsidiariesAPCo shall have furnished or caused to be furnished or agree to furnish to the Rating Agencies at the Closing Date such opinions and certificates as the Rating Agencies shall have reasonably requested prior to the Closing Date. Any opinion letters delivered on the Closing Date to the Rating Agencies beyond those being delivered to the Underwriters above shall either (x) include the Underwriters as addressees or (y) be accompanied by reliance letters addressed to the Underwriters referencing such letters. If any of the conditions specified in this Section 9 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions and the supporting schedules, included certificates mentioned above or elsewhere in the Registration Statement and the Final Prospectus and audited by them comply as to form this Underwriting Agreement shall not be in all material respects with reasonably satisfactory in form and substance to the applicable accounting requirements Representatives and Counsel for the Underwriters, all obligations of the Securities Act and Underwriters hereunder may be canceled at, or at any time prior to, 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 Closing Date by the Company and ▇▇▇▇▇▇, carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading Representatives. Notice 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 such cancellation shall be given to the date of the most recent audited consolidated financial statements included Issuer 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 writing or by telephone or facsimile confirmed 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 thereunderwriting.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Appalachian Consumer Rate Relief Funding LLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Units described in Sections 2(a) and 2(b) hereof shall be subject to (i) the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time, the Closing Date and (in the case of any Units delivered after the Closing Date, any settlement date pursuant to Section 3(b) hereof), (ii) the accuracy of any material the statements of the Company made in any certificatescertificates delivered pursuant to the provisions hereof, opinions(iii) the performance by the Company of its obligations hereunder, affidavitsand (iv) the following additional conditions:
(a) The Registration Statement shall have become effective (or, written statements if a post- effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or letters at such later date and time as the Representatives may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been initiated or, to the best knowledge of the Company, threatened by the Commission.
(b) The Company shall have furnished to the Representatives or to the opinion of ▇▇▇▇, Dill, Carr, ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("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 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 the opinion of a Deputy General Counsel or the Chief Legal Officer counsel for the Company, addressed to the Underwriters and dated the day of Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Closing Date, Representatives 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, ; any required filing of the Prospectus or 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 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 qualification in 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 jurisdiction 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 request from 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 Commission for additional information 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 complied with; the Registration Statement and the Final Prospectus (and audited by them any supplements thereto) 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.
thereunder (ii) On except that such counsel need express no opinion with respect to the basis of a reading of the unaudited consolidated financial statements of the Company Financial Statements and its subsidiaries, if any, schedules 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 standardsProspectus), 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Starlight Entertainment Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 For 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 period from and after effectiveness of this Agreement or such later date and time as shall be consented prior to in writing by the Representatives.Closing Date:
(bi) No no stop order suspending the effectiveness of the Registration Statement, as amended from time or any post-effective amendment to time, or suspending the qualification of the IndentureRegistration Statement, shall be in effect and no proceedings for such purpose shall be pending before have been instituted or threatened by the Commission Commission;
(ii) the Company shall have filed the preliminary prospectus and any requests for additional information on the part of Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to be included in the Registration Statement or containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Prospectus or otherwiseTerm Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such rule or, to the extent applicable, under Rule 164(b) under the Securities Act; and
(iv) The Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have been complied with raised no objection to the reasonable satisfaction fairness and reasonableness of the Representativesunderwriting terms and arrangements.
(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.
(db) The Company shall have furnished to the Representatives Representative the opinion of a Deputy General Counsel or the Chief Legal Officer McGuireWoods LLP, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (v) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(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 State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Disclosure Package and the Prospectus. Each , and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and its Named the Principal Subsidiary Bank is duly qualified or licensed to do business as a foreign corporation, is corporation in good standing and is duly registered as a broker-dealer, broker, dealer each jurisdiction in which such counsel has knowledge that the Company or investment advisorthe Principal Subsidiary Bank, as the case may be, in each jurisdiction in which the nature of the business conducted by it is required to be so qualified 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.licensed;
(xiiiii) All all the outstanding shares of capital stock of the Company's Named Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and non-assessable (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except for as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' ’ qualifying shares, ) are owned beneficially, directly or indirectly, by the Company or a subsidiary of the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens, liens or encumbrances and security interests.with respect thereto;
(xiiiiv) Such such counsel does not know of is without knowledge that there is (1) any litigation or any governmental proceeding pending or threatened against action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving 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 Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the statements made in the Base Prospectus under the headings “Description of Preferred Stock” and correctly summarized therein. Such opinion shall also contain a statement that although “Description of Depositary Shares,” as supplemented, amended and/or superseded by the statements in the final prospectus supplement for the Shares dated the date of this Agreement under the headings “Description of the Preferred Stock” and “Description of the Depositary Shares,” insofar as they purport to constitute summaries of the material terms of the Deposit Agreement, the Depositary Shares and the Preferred Stock, constitute accurate summaries in all material respects;
(vi) the Registration Statement has been declared effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements, supporting schedules, footnotes and other financial, accounting and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, the Certificate of Designations and the Deposit Agreement, or the General Corporation Law of the State of Delaware is required for the execution, delivery and performance by the Company of its respective obligations under the this Agreement, the Certificate of Designations and the Deposit Agreement, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, will be entitled to the rights under, and the benefits of, the Deposit Agreement; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) none of the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement and the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Restated Certificate of Incorporation or Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any U.S. court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus, including any document incorporated by reference therein, consisting of financial statements, supporting schedules, footnotes and other financial, accounting and statistical information or statements in the Disclosure Package or the Prospectus concerning the securities and other commercial laws of countries or jurisdictions other than the United States, and it has not independently verified, is not passing upon and does not assume any assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and Statement, the Final Disclosure Package, or the Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiv) above), nothing has come to its attention that has caused it to believe that such remaining portions of the Registration Statement or any amendment thereto, insofar as it relates to the offering of the Shares, as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion), such counsel has no reason contained or contains any untrue statement of a material fact or omitted or omits to believe that (i) state any material fact required to be stated therein or necessary to make the Registration Statementstatements therein not misleading or that, subject to the foregoing with respect to financial statements, supporting schedules, footnotes and other financial, accounting and statistical information, the Disclosure Package, insofar as it relates to the offering of the Shares, taken as a whole, as of its effective datethe Initial Sale Time, 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 misleading, or that no opinion need be expressed the Prospectus, as amended or supplemented, insofar as it relates to the financial offering of the Shares, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or other financial or statistical data or when any of the Form T-1 included or incorporated by reference therein)information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of New York and North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Final Disclosure Package and the Prospectus and any other related matters as the Representatives 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its Chief Executive Officerthe Company, its signed by any Managing Director, any Director, any Senior or other Vice President or the Treasurer or any Managing Director or Vice President and its Chief Financial Officer or its Treasurerother authorized officer of the Company, dated the day of the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and he or she is without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company contained in Section 1 of this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatened.threatened by the Commission;
(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 (ziii) 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 Disclosure Package 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5Prospectus, there has been any decrease in such amounts as compared with the amounts shown material adverse change or any development involving a prospective material adverse change in the most recent consolidated condition (financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three or other), earnings, 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 properties of the Company and its subsidiaries, taken as compared with the amounts shown a whole, whether or not arising from transactions in the most recent consolidated statement ordinary course of financial condition business, except as set forth in or contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding is pending to restrain or enjoin the issuance or delivery of the Company Shares, or which in any way affects the validity of the Shares.
(e) On the date hereof and its subsidiaries on the Closing Date, the Representative shall have received a letter from PricewaterhouseCoopers LLP, dated as of the date hereof or the Closing Date, as applicable, in form and substance satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to financial statements and financial information included and incorporated by reference in the Registration Statement and the Final Prospectus; except .
(f) Subsequent to the respective dates as of which information is given in all instances for increases the Registration Statement, the Disclosure Package and the Prospectus, there shall not have been (i) any change or decreases set forth in such letter, in which case the letter shall be adecrease spe
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any Settlement Date pursuant to Section 3 hereof, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(k) hereof; 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 pursuant to Rule 424 not later than 5:00 p.m., New York City time, on within the second business day following the date of this Agreement or such later date and applicable 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 periods prescribed for such purpose shall be pending before or threatened filings 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 termsRule 433; 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 or any notice objecting to its use shall have been issued and no proceeding proceedings for that purpose is pending shall have been instituted or threatened by the Commissionthreatened.
(ixb) The Registration StatementCompany shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as Company, to have furnished to the financial statements or other financial or statistical data or Representatives their opinion and negative assurance letter, each dated the Form T-1 of Closing Date and addressed to the Trustee under Representatives, in substantially the Trust Indenture Act included or incorporated by reference therein) comply as to form specified in all material respects with the requirements of the Securities Act Exhibit A-1 and the RulesExhibit A-2 hereto, respectively.
(xc) 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 The Company has filed a preliminary listing application and all required supporting documents with respect shall have furnished to the Securities with Representatives a written opinion of the NYSECompany’s Co-General Counsel and Corporate Secretary dated the Closing Date and addressed to the Representatives, in form and such counsel has no reason substance reasonably satisfactory to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distributionRepresentatives.
(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.
(ed) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, 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.
(e) The Representatives shall have received on and as of the Closing Date an opinion of Winston & ▇▇▇▇▇▇ LLP, special counsel for the Representatives, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to 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.
(f) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chair of the Board or the Chief Executive Officer, its President Officer and the principal financial or any Managing Director or Vice President and its Chief Financial Officer or its Treasureraccounting officer of the Company, dated the day of 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 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 extending through the latest 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, (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, 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 or incorporated by reference in each of the Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than two business days prior to the Closing Date.
(h) The Company shall have requested and caused KPMG 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 one or more of the Representatives, dated respectively as of the Execution Time and as of the Closing Date, 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 or incorporated by reference in each of the Disclosure Package and the Final Prospectus.
(i) 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, 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, 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 or incorporated by reference in each of the Disclosure Package and the Final Prospectus.
(j) 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 one or more of the Representatives, dated respectively as of the Execution Time and as of the Closing Date, 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 or incorporated by reference in each of the Disclosure Package and the Final Prospectus.
(k) The Company and the Purchase Contract Agent shall have executed and delivered the Purchase Contract Agreement and the Underwriters shall have received copies, conformed as executed, thereof.
(l) The Company shall have executed, delivered and filed the Certificate of Designations with the State of Delaware and the Underwriters shall have received copies, conformed as executed, thereof.
(m) 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 letters referred to in paragraphs (g) and (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 have monthly financial statementstaken 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).
(n) Subsequent to the Execution Time, there was shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a consolidated net loss or possible change in any such rating that does not indicate the direction of the possible change.
(IIIo) with respect Prior to the amounts Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(p) An application for the listing of net capital the Issuable Common Stock shall have been submitted to the New York Stock Exchange, and satisfactory evidence of such action shall have been provided to the Representatives. The Issuable Common Stock shall have been approved for listing, subject to official notice of issuance.
(q) 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 and addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or excess net capital 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 facsimile or by telephone confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5& ▇▇▇▇▇▇▇ LLP, there has been any decrease in such amounts as compared with counsel for the amounts shown in Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, on 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 aClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company and the Manager contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any material statements officer of the Company and the Manager made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(i)(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; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Representatives or to shall have received (i) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Manager to the performance by effect set forth in Exhibit B-1 hereto; (ii) 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companyopinion, dated the day as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company to the effect that:
set forth in Exhibit B-2 hereto; and (iiii) The Company has been duly organized and is validly existing and in good standing under the laws opinion, dated as of the jurisdiction Closing Date, of its incorporation ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably satisfactory to the counsel for the Underwriters, together with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in signed or reproduced copies of such letters for each of the Final Prospectusother Underwriters.
(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.
(ec) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters, and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such 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 their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated signed by the day chief executive officer of the Closing DateCompany and the principal financial or accounting officer of the Company, on behalf of the Company 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the Registration Statement has become effective under the Act and 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 threatenedincorporated 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).
(xe) 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 Manager shall have furnished to the Representatives a lettercertificate signed by the chief executive officer, dated president or a senior managing director of the day Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager 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 Manager 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 (ii) the Manager has complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(g) At the Execution Time and at the Closing Date, the Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such 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 relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(h) At the Execution Time and at the Closing Date, the Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such 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 relating to “West Coast Office Portfolio” and “West Coast Office Park” incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(i) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated 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 any change, or any development involving a prospective change, in or affecting the condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, and the supporting schedules, included whether or not arising from transactions in the Registration Statement 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 is, in the sole judgment of the Representatives, so material and audited by them comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering or delivery of the Securities Act as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Exchange Act and the related published rules and regulations thereunderFinal Prospectus (exclusive of any amendment or supplement thereto).
(iij) On At the basis of Closing Date, the Representatives shall have received a reading of certificate signed by the unaudited consolidated financial statements Principal Accounting Officer of the Company certifying as to the preparation, completeness and its subsidiariesaccuracy of certain financial and statistical data relating to the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(k) At the Closing Date, the Representatives shall have received a certificate signed by the Principal Accounting Officer of the Manager certifying as to the preparation, completeness and accuracy of certain financial and statistical data relating to Blackstone included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(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.
(m) The FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(n) The Underlying Shares 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.
(o) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the Registration Statement form of Exhibit A-1 and the Final Prospectus and A-2 hereto, signed by each of the latest unaudited consolidated financial statements made available parties identified on Schedule V hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. 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, letters 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 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 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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), shall have been filed with the Commission pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companytheir opinion, dated the day of Closing Date and addressed to the Closing DateRepresentatives, to the effect that:
(i) The Company the Registration Statement is an “automatic shelf registration statement” (as defined under Rule 405) that has been duly organized filed with the Commission not earlier than three years prior to the date of the Underwriting Agreement; the Indenture has been qualified under the Trust Indenture Act; each Preliminary Prospectus and the Final Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein; and no order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering of the Securities is pending or, to the knowledge of such counsel, threatened by the Commission; and the Registration Statement and the Final Prospectus (other than the financial statements and other financial 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 Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder.
(ii) each of the Company and the Significant Subsidiaries is validly existing and as a corporation in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized, with all requisite full corporate 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 Disclosure Package and the Final Prospectus., and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where such failure to be so qualified would not result in a Material Adverse Effect;
(iiiii) The the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.;
(iiiiv) The the Indenture has been duly authorized, executed and delivered delivered, and, assuming due authorization, execution and delivery of the Indenture by the CompanyTrustee, 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; terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(v) the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting 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 Company entitled to the benefits of the Indenture; provided however;
(vi) to such counsel’s knowledge, that 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 foregoing Company or any of its subsidiaries or its or their property, of a character required to be disclosed pursuant to Item 103 of Regulation S-K in the Company’s periodic reports filed under the Exchange Act which is subject not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit to the effects Registration Statement, which is not described or filed as required, and to the extent that they constitute matters of bankruptcylaw, insolvencysummaries of legal matters or legal conclusions, fraudulent conveyance, reorganization, moratorium the statements set forth in the Preliminary Prospectus and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations” are accurate in a proceeding in equity or at law) all material respects and by an implied covenant of good faith and fair dealing.fairly present the information provided;
(ivvii) No 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 Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization authorization, order, registration or order qualification of or with any court or arbitrator or governmental agency or body regulatory authority is required for to be obtained by the consummation of Company in connection with the transactions contemplated in this Agreementherein, except for (1) the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations authorizations, orders and registrations or orders as have been obtained under the Securities Act and such qualifications as may be required under the Exchange Act and the blue sky laws of any United States state jurisdiction or the securities laws of any foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, ;
(x) neither the execution and (2) the qualification delivery of the Indenture under Indenture, the Trust Indenture Actissue and sale of the Securities, which has been obtained.
(v) Such counsel does not know nor the consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof will not conflict with, or result in the creation a breach or violation of, or imposition of any material lien, charge or encumbrance upon any of the property or assets of the Company or its Named any Significant Subsidiary pursuant to to, (i) 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 any Significant Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or any orderother agreement, rule obligation, condition, covenant or regulation instrument known to such counsel to which the Company or any Significant Subsidiary 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 any Significant Subsidiary of any court court, regulatory body, administrative agency, governmental body, arbitrator or governmental agency other authority having jurisdiction over the Company, its Named Company or any Significant Subsidiary or any of their respective properties, except in the effect case of which clauses (ii) and (iii) for such breaches, violations or defaults that could not adversely affect in a material respect the ability of the Company to perform its obligations under this Agreement, or would otherwise be material in the context of the sale of the Securities; and
(xi) to such counsel’s knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under independent accountants and counsel at which conferences the Securities Act, and, to the best contents 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 Disclosure Package and the Final Prospectus and each any amendment thereof or and 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 related matters were discussed 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 assumes no responsibility for the accuracy, completeness or fairness of the statements contained in Registration Statement, the Registration Statement and Disclosure Package, the Final Prospectus and any amendment or supplement thereto (except as to those matters stated in paragraph (ii) of such opinionexpressly provided above), no facts have come to such counsel’s attention that cause such counsel has no reason to believe that (i) at the Effective Date immediately preceding the Execution Time, the Registration StatementStatement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, as of its effective date(ii) the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading or and (iiiii) the Final Prospectus or any amendment or supplement thereto, as of its date and the Closing Date, contains any untrue statement of a material fact or omits to state any a 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 other than, in each case, the financial statements or statements, related schedules and other financial or statistical data or the Form T-1 included or incorporated by reference therein, as to which such counsel need express no belief). 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, 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 opinions the opinion of local other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters and may rely (B) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and public officials. Such counsel may rely on a certificate of the Trustee with respect References to the execution of Final Prospectus in this Section 7(b) shall also include any supplements thereto at the Securities by the Company and the authentication thereof by the TrusteeClosing Date.
(ec) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the 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.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, solely in their respective capacities as such, dated the day of 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 and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 threatenedincorporated by reference in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time).
(xe) 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, Company shall have requested 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 Deloitte & Touche LLP shall have furnished to the Representatives a letterRepresentatives, at the Execution Time and at the Closing Date, “comfort” letters, dated as of the day date of this Agreement and as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent auditors with respect to the Company registered public accounting firm within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have audited the consolidated financial information of the Company for the year ended December 31, 2016, in form accordance with the standards of the Public Company Accounting Oversight Board (United States), and substance satisfactory to the Representatives, stating in effect that:
(i) In in their opinion, opinion the consolidated audited financial statements of the Company and its subsidiaries, and the supporting schedules, included or incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus and audited reported on 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.adopted by the Commission;
(ii) On on the basis of a reading their audit of the unaudited consolidated financial statements of information for the Company and its subsidiariesyear ended December 31, if any2016, included in the Registration Statement Preliminary Prospectus and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇, Prospectus; carrying out certain specified procedures (but not an audit 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 committee of the Company and ▇▇▇▇▇▇, Company; 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, 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 ProspectusDecember 31, 2016, nothing came to their attention that which caused them to believe that:
(A1) any audited financial statements of the Company 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 Securities Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in the annual report on Form 10-K under the Exchange Act; and said audited financial statements are not in conformity with GAAP; and
(2) (i) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if anystatements, included in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; GAAP, and such (ii) the unaudited 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, related rules and regulations thereunder.adopted by the Commission; and
(Biii) 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 unaudited capsule information general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, if any, included in the Registration Statement and excluding any questions of legal interpretation. References to 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.
(Cthis Section 7(e) (I) as of the latest date as of which the Company and its subsidiaries have monthly financial statements, there was include 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, there was any decrease in if earlier, the capital stock or additional paid-in capital, or increase in long-term indebtedness dates as 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 which information is given 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(exclusive of any ame
Appears in 1 contract
Sources: Underwriting Agreement (SNAP-ON Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before <Page> 5 have been instituted or threatened by the Commission threatened; 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 filed with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (iv) through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) The the Company has been is a duly organized and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus., and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) The Securities each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.;
(iiiv) The if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorizedauthorized and, when executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery authenticated in accordance with the Underwriting Agreement, 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 Company entitled to the benefits of the Indenture; provided howeverIndenture and enforceable against the Company in accordance with their terms, that the foregoing is subject to the effects of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyanceconveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement or the Final Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(viii) the Registration Statement has become effective under the Act; no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium and insolvency, moratorium, fraudulent conveyance or other similar laws relating affecting the rights of creditors now or hereafter in effect, and to or affecting creditors' rights generally, general equitable principles (whether considered that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in a proceeding in equity or at lawthis Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and by an implied covenant similar bank regulatory powers and to the application of good faith and fair dealing.principles of public policy;
(ivx) No no consent, approval, authorization or order of any court or governmental agency or body is necessary or required on behalf of the Company for the consummation of the transactions contemplated in this Agreementherein, 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 or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xi) neither the qualification issuance and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default under, under the certificate of incorporation or by-laws of the Company or (1) the terms of any indenture or other material agreement, indenture agreement or instrument known to such counsel and to which the Company or its Named the Principal Subsidiary Bank 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 (2) any order, rule law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator having jurisdiction over the Company, its Named Company or the Principal Subsidiary or Bank; and
(xii) such counsel is without knowledge of any of their respective properties, the effect of which would be material rights to the registration of securities of the Company and its subsidiaries taken as a whole.
(viii) The under the Registration Statement has become effective under which have not been waived by the Securities Act, and, to the best holders of such rights or which have not expired by reason of lapse of time following notification of the knowledge of Company's intention to file the Registration Statement. In rendering such counselopinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no stop order suspending the effectiveness view as to portions 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 consisting of financial statements or and other financial or financial, accounting and 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 information and the Rules.
(x) If the Securities are to be listed on the NYSEit has not independently verified, 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 assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and the or Final Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiiv) of such opinionabove), such counsel it has no reason to believe that (i) such remaining portions of the Registration Statement, Statement or any amendment thereto at the time it became effective and as of its effective date, the date of such opinion 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) that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Final Prospectus Prospectus, as amended or supplemented, as of its date and as of the date of such opinion contained or contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, 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)misleading. 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 North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and any 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.. <Page> 8
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board, Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurera Senior Vice President, and the principal financial or accounting officer of the Company, dated the day of 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 they are without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company in this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatenedthreatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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.
(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
(ge) At the Closing Date, a nationally recognized firm of independent public accountants PricewaterhouseCoopers LLP shall have furnished to the Representatives a letterletter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated the day as 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, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries, subsidiaries audited by them and the supporting schedules, included or incorporated by reference 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 rules and regulations of the Commission thereunder with respect to registration statements on Form S-3 and the Exchange Act and the related published rules and regulations thereunder.
(iiiii) 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 ) consisting of:
(a) Reading the minutes of the meetings of the directors stockholders, the board of directors, executive committee and audit committee of the Company and ▇▇▇▇▇▇the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of regarding 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, specific items for which representations are requested below; nothing came has come to their attention as a result of the foregoing procedures that caused them to believe that:
(A1) any material modifications should be made to the unaudited condensed consolidated interim financial statements of the Company and its subsidiaries, if anystatements, included or incorporated by reference 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 Exchange Act and the published instructions, rules and regulations thereunder.;
(B2) any material modifications should be made to the unaudited capsule information condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and its subsidiaries, if any, the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference 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.
(Cii) (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 for 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 afrom
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates delivered pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed or mailed for filing with to the reasonable satisfaction of Commission within the Representativestime period prescribed by the Commission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer [Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇], counsel for the CompanyCompany and the Underwriters, dated the day of the Closing Date, to the effect thatof paragraphs (iii), (vi), (vii), (ix), (xi), (xiv), (xv), (xvi) and (xvii) below, and the opinion of [R▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.], special counsel to the Company, dated the Closing Date, to the effect of paragraphs (i), (ii), (iv), (v), (viii), (x), (xii) and (xiii) below:
(i) The the Company has been is a duly organized incorporated and is validly existing and corporation in good standing under the laws of the jurisdiction State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus.;
(ii) The the Company has no subsidiaries and is not required to be qualified or licensed to do business as a foreign corporation in any jurisdiction;
(iii) the Securities and the Indenture conform in all material respects to the descriptions description thereof contained in the Final Prospectus.;
(iiiiv) The Indenture the Pooling Agreement has been duly authorized, executed and delivered by the Company, has ;
(v) the Securities have been duly qualified under authorized by the Trust Indenture Act Company;
(vi) upon due authorization, execution and constitutes delivery by the parties thereto, the Pooling Agreement will constitute a legal, valid and binding instrument agreement of the Company, enforceable against the Company in accordance with its terms; and the Securities have been duly authorized, executed and issued except as such enforceability may be limited 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 (A) bankruptcy, insolvency, fraudulent conveyanceliquidation, reorganizationreceivership, moratorium and moratorium, reorganization or other similar laws relating to or affecting creditors' the enforcement of the rights of creditors generally, and (B) general equitable principles (of equity, whether considered enforcement is sought in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing.;
(ivvii) No the Securities, when duly and validly executed, authenticated and delivered in accordance with the Pooling Agreement and paid for in accordance with this Agreement, will be entitled to the benefits of the Pooling Agreement;
(viii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(ix) the Registration Statement has become effective under the Act; to the best knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference 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 the Registration Statement or any amendment thereof at the time it became effective 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 amended or supplemented, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(x) this Agreement has been duly authorized, executed and delivered by the Company;
(xi) upon due authorization, execution and delivery by the parties hereto, this Agreement will constitute a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors generally, (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of any of the provisions of this Agreement which purport to provide indemnification from securities law liabilities;
(xii) 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 Agreementherein, 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, Underwriters and such other approvals (2specified in such opinion) as have been obtained;
(xiii) neither the qualification issue and sale of the Indenture under Securities, nor the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know consummation of any contracts or other documents which are required to be filed as exhibits to of the Registration Statement by transactions herein contemplated nor the Securities Act or by fulfillment of 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 terms hereof 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 a breach of, or constitute a default underunder the certificate of incorporation or by-laws of the Company or, to the best knowledge of such counsel, the terms of any material agreement, indenture or other agreement or instrument known to such counsel and to which the Company or its Named Subsidiary is a party or by which it 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 order or regulation known to such counsel to be applicable to the Company of any court court, regulatory body, administrative agency, governmental body or governmental agency arbitrator 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.;
(viiixiv) The Registration Statement has become effective under the Securities Act, and, Pooling Agreement is not required 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 qualified under the Trust Indenture Act included of 1939, as amended;
(xv) neither the Company nor the Trust Fund is required to be registered under the Investment Company Act of 1940, as amended;
(xvi) the statements in the Final Prospectus under the headings "Certain Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute matters of State of New York or incorporated by reference therein) comply as federal law or legal conclusions with respect thereto, while not purporting to form discuss all possible consequences of investment in the Certificates, are correct in all material respects with respect to those consequences or matters that are discussed therein; and
(xvii) assuming compliance with the requirements provisions of the Securities Act Pooling Agreement, for federal income tax purposes, each of REMIC I and REMIC II [as such terms are defined in the Rules.
Pooling Agreement] will qualify as a REMIC within the meaning of Sections 860A through 860G (xthe "REMIC Provisions") If of 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 NYSECode, 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) _______________________ will be the Registration Statement"regular interests" in REMIC I, 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 ______________________ will be the sole class of a material fact or omits to state any material fact necessary "residual interests" in order to make REMIC I, (iii) the statements therein__________________________ will evidence "regular interests" in REMIC II and (iv) the __________ ____________ will be the sole class of "residual interests" in REMIC II, in each within the light meaning of the circumstances under which they were made, not misleading (except that no opinion need be expressed as to REMIC Provisions in effect on the financial statements or other financial or statistical data or the Form T-1 included or incorporated by reference therein)date hereof. 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 United States or the laws of the State of Delaware other than its general corporation law, to the extent deemed proper and specified in such opinion, upon opinions the opinion of local other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company 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.
(ec) [The Representatives shall have received from Underwriters' Counsel such opinion copies, addressed to them or opinionson which they are entitled to rely, dated of opinions of counsel furnished to the day rating agencies rating the Securities as set forth on Schedule I hereto addressing the characterization of the Closing Datetransfer by the Company to the Trustee of its right, title and interest in and to the mortgage loans underlying the Securities (the "Mortgage Loans") in accordance with the Pooling Agreement, and the sale of the Securities to the Underwriters hereunder, as a sale of the interests in the Mortgage Loan evidenced by the Securities rather than a financing or, alternatively, an opinion with respect to (i) the issuance Trustee's having as a perfected first priority security interest in the Mortgage Loans and sale (ii) the non-consolidation of the Securities, Company and ______________ in 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 event of enabling them to pass upon such mattersa conservatorship or receivership of ________________.]
(fd) The Company shall have furnished to the Representatives a certificate of its the Company, signed by the Chairman of the Board or President and Chief Executive Officer, its Officer or an Executive Vice President or any Managing Director Treasurer and the principal financial or Vice President and its Chief Financial Officer or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect thatthat the signers of such certificate have carefully examined the Registration Statement (excluding any Current Reports and any other documents incorporated by reference therein), the Final Prospectus and this Agreement and that to the best of their knowledge after due inquiryknowledge:
(i) The 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, 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 no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and no proceedings for that purpose have been instituted or threatened; and
(iii) since the respective dates as of which information is given in the Final Prospectus, there has been no material adverse change in the condition (financial or other), 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 Final Prospectus.
(xe) The Registration Statement does not contain On the date hereof, ______________________ and/or 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 other firm of certified independent public accountants acceptable to the Representatives shall have furnished to the Representatives a letter, dated the day of the Closing Datedate hereof, 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, confirming that they are independent accountants within the consolidated financial statements meaning 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 respective applicable published rules and regulations thereunder.
(ii) On , and stating in effect that using the basis assumptions and methodology used by the Company, all of a reading of the unaudited consolidated financial statements of the Company which shall be described in such letter, they have recalculated such numbers and its subsidiaries, if any, included percentages set forth in the Registration Statement and the Final Prospectus as the Representatives may reasonably request and as are agreed to by ______________________, compared the results 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 their calculations to the date of the most recent audited consolidated financial statements included corresponding items in the Registration Statement and the Final Prospectus, nothing came and found each such number and percentage set forth in the Final Prospectus to their attention that caused them to believe that:
(A) any material modifications should be made in agreement with the results of such calculations. To the extent historical financial information with respect to the unaudited consolidated financial statements of the Company and its subsidiariesand/or historical financial, if any, delinquency or related information with respect to one or more servicers is included in the Registration Statement and the Final Prospectus, for them such letter or letters shall also relate to be such information.
(f) The Securities shall have received the rating or ratings from the rating agency or rating agencies set forth in conformity with generally accepted accounting principles; Schedule I hereto.
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates, opinions and such financial statements do documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not comply as to form have been fulfilled in all material respects with the applicable accounting requirements when and as provided in this Agreement, or if any of the Securities Act 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 published instructionsRepresentatives and their counsel, rules this Agreement and regulations thereunder.
(B) the unaudited capsule information all obligations of the Company and its subsidiariesUnderwriters hereunder may be canceled at, if anyor at any time prior to, included in the Registration Statement and Closing Date by the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements Representatives. Notice of such cancellation shall be given to the Company from which it was derived in writing or was not determined on a basis substantially consistent with that of the corresponding financial information by telephone or telegraph confirmed in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectuswriting.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of each of the Company Obligors contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Obligors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Obligors of their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any 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 Issuer or the Parent 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) The Representatives or to ▇▇▇shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant LLP, counsel for the Obligors, an opinion and negative assurance letter, each dated the Closing Date and addressed to this Section 6the Representatives, to the performance by the Company effect set forth on or attached hereto as Exhibit A.
(c) The Representatives shall have received (i) an opinion of its respective obligations hereunder and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, a Professional Corporation, Maryland counsel to the following additional conditions:
Obligors, as to matters governed by Maryland law to the effect set forth on or attached hereto as Exhibit B, (aii) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than 5:00 p.m.an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, New York City timecounsel to the Obligors, as to matters governed by New York law to the effect set forth on or attached hereto as Exhibit C, and (iii) an opinion of ▇▇▇▇▇ Day, English counsel to the second business day following Obligors, as to matters governed by English law to the date effect set forth on or attached hereto as Exhibit D, in each case of this Agreement or such later date the forgoing, dated as of the Closing Date and time as shall be consented addressed 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 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such matters as the Representatives may reasonably require, and the Company Obligors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely upon (i) an opinion, dated as of the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, a Professional Corporation, as to matters governed by Maryland law, (ii) an opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as to matters governed by Michigan law and (iii) an opinion, dated as of the Closing Date, of ▇▇▇▇▇ Day, as to matters governed by English law.
(fe) The Company Obligors shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Parent, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Parent, on behalf of the Parent and the Issuer, dated the day of 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, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company Obligors 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, Date and each of the Company has Obligors complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date.;
(ii) No the Registration Statement is effective under the Act and 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 Obligors’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or threatenedincorporated 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).
(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
(gf) At the Execution Time and at the Closing Date, a nationally recognized firm of independent public accountants the Representatives shall have furnished to the Representatives received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letterletter dated such date, 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 together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including 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) 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 (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 Obligors and their subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any 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) At the Execution Time and at the Closing Date, the Representatives shall have received a certificate signed by the Chief Financial Officer of the Parent certifying as to the preparation, completeness and accuracy of certain financial and statistical data relating to the Parent and the Issuer included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(i) In their opinionPrior to the Closing Date, the consolidated financial statements of Obligors shall have furnished to the Company Representatives such further information, certificates and its subsidiaries, and documents as 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 thereunderRepresentatives may reasonably request.
(iij) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiariesThe FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(k) The Indenture shall have been duly executed and delivered by a duly authorized officer of each of the Obligors and the Trustee, and the Notes shall have been duly executed and delivered by a duly authorized officer of the Issuer and duly authenticated by the Trustee.
(l) The Notes shall be eligible for clearance and settlement through DTC.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the Registration Statement rating of any of the Parent’s or the Issuer’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) No action shall have been taken and 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 Closing Date, prevent the issuance or sale of the Notes or the issuance of the Parent Guarantee; 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 Notes or the issuance of the Parent Guarantee.
(o) Prior to the Closing Date, the Obligors 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 Issuer and the Final Prospectus and Parent 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 latest unaudited consolidated financial statements made available by the Company and Underwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, 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 or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Representatives or shall have received (i) the opinion and negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company, dated the Closing Date and addressed to the Representatives, to the effect as set forth on Exhibit A hereto, (ii) the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Morandi, Esq., the Chief Legal Officer of the Company, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit B hereto, and (iii) the opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, special tax counsel for the Company, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 the opinion of a Deputy General Counsel or the Chief Legal Officer counsel for the CompanyUnderwriters, such opinion and negative assurance letter, dated the day of the Closing Date, Date and addressed 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 DateRepresentatives, 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 reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President signed by the Chairman of the Board or any Managing Director or Vice the President and its Chief Financial Officer the principal financial or its Treasureraccounting officer of the Company, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or other), business, properties or results of operation of the Company and extending through the latest date 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).
(e) The Representatives shall have received from PricewaterhouseCoopers, LLP (US), at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of which the Execution Time and as of the Closing Date and each 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 of the Company and its subsidiaries have monthly financial statementscontained or incorporated by reference in each of the Disclosure Package and the Final Prospectus, there was a consolidated net loss or confirming that PricewaterhouseCoopers, LLP (IIIUS) is an independent registered accounting firm with respect to the amounts Company and its subsidiaries within the meaning of net capital the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the PCAOB; provided that the “comfort” letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(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 excess net capital supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective 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, sale 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 such term is defined in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the 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 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 ▇▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5& ▇▇▇▇▇▇▇▇ LLP, there has been any decrease in such amounts as compared with counsel for the amounts shown in Underwriters, at 24▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on 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 aClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuers contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Issuers made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company Issuers of its respective their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have furnished to the Representatives Representative the opinion of a Deputy ▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President and General Counsel or of the Chief Legal Officer for Company, and ▇▇▇▇▇▇ ▇▇▇▇▇, Secretary and Corporate Counsel of the Company, dated the day of Closing Date and addressed to the Closing DateRepresentative, to the effect that:
(i) The each of the Company and its subsidiaries has been duly organized and is validly existing and is in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized with all requisite corporate full 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 Disclosure Package and the Final Prospectus., and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except in each case as would not, singly or in the aggregate, have a Material Adverse Effect;
(ii) The each Issuer has the power and authority to execute and deliver this Agreement, the Indenture and the Securities and to perform its obligations thereunder;
(iii) all the outstanding shares of capital stock of each Significant Subsidiary that is a corporation 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, all outstanding shares of capital stock of the Significant Subsidiaries (other than Allegiant Insurance Company, Inc., a Risk Retention Group) are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iv) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus; and the Securities being sold hereunder by the Company are duly listed and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution on the NYSE;
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(vi) neither the execution and delivery of this Agreement, the Indenture, the issue and sale of the Securities nor the consummation of any other of the transactions contemplated by this Agreement 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 any of the Guarantors pursuant to, (x) the charter or by-laws of the Company or any of the Guarantors, (y) 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 the Guarantors is a party or bound or to which its or their property is subject, or (z) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Guarantors of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Guarantors or any of its or their properties, except, in the case of clause (y) or (z), as would not, singly or in the aggregate, have a Material Adverse Effect;
(vii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(viii) neither the Company nor any Guarantor is and, after giving effect to the offering and sale of the Securities and the Indenture conform application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended. In rendering such opinion, such counsel may assume as to matters involving the application of laws of any jurisdiction other than the State of Colorado and the General Corporation Law of the State of Delaware (collectively, the “Subject States’ Laws”) and the Federal laws of the United States, to the extent they deem proper and specified in such opinion, that insofar as the opinions expressed relate to matters governed by state law other than the Subject States’ Laws, the relevant laws of such other states, and their application to such matters, are and would be the same as the laws which would be applicable to such matters if such agreement were governed by and construed and enforced in accordance with the laws (other than the law governing conflict of law matters) of the State of Colorado. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Issuers, shall have furnished to the Representative an opinion, dated the Closing Date and addressed to the Representative, to the effect that:
(i) the Registration Statement has become effective under the Act; all required filings pursuant to Rule 424(b) under the Act have been made in the manner and within the time period required by such Rule; to the knowledge of such counsel, (i) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission, and (ii) no proceedings for that purpose have been instituted or threatened by the Commission; and the Registration Statement as of the time it became effective and the Final Prospectus as of its date (other than the financial statements, the related notes and schedules and other financial information and statistical data, including, without limitation, all pro forma financial data, contained or incorporated by reference therein or omitted therefrom, as to which such counsel express no opinion) comply as to form in all material respects to with the descriptions thereof contained applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the applicable respective rules thereunder;
(ii) the statements included in the Preliminary Prospectus and the Final Prospectus.Prospectus under the heading “Certain United Stated Federal Income Tax Considerations” fairly summarize the matters therein described in all material respects;
(iii) The the statements included or incorporated by reference in the Preliminary Prospectus and the Final Prospectus under the headings “Description of Debt Securities” and “Description of Notes” constitute accurate summaries of the terms of the Indenture, the Notes and the Guarantees in all material respects;
(iv) the Indenture has been duly authorizedauthorized by the requisite corporate or limited partnership action, as the case may be, on the part of the Company and the Guarantors, has been duly executed and delivered by the CompanyCompany and the Guarantors, and has been duly qualified under the Trust Indenture Act and Act; the Indenture constitutes a legal, valid and binding instrument obligation of the Issuers, enforceable against the Company Issuers in accordance with its terms; and ;
(v) the Securities Notes have been duly authorized, executed and issued authorized by the requisite corporate action on the part of the Company, and assuming due authentication have been duly executed by the Trustee and upon payment and delivery Company; the Notes, when authenticated in accordance with the Underwriting 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 Company, enforceable against the Company in accordance with their respective terms, and will be 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.;
(ivvi) No the Guarantees have been duly authorized by the requisite corporate or limited partnership action, as the case may be, on the part of the Guarantors and have been duly executed by the Guarantors; when the Notes are authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, each Guarantee will constitute the legal, valid and binding obligation of the Guarantors, enforceable against such Guarantor in accordance with its terms;
(vii) this Agreement has been duly authorized by all requisite corporate or limited partnership action, as the case may be, on the part of the Company and the Guarantors and has been duly executed and delivered by the Company and the Guarantors; and
(viii) no consent, approval, authorization authorization, filing with or order of (i) any State of Delaware court or governmental agency or body, in each case solely under the General Corporation Law of the State of Delaware, or (ii) any State of New York, State of Colorado or United States federal court or governmental agency or body is required for the consummation due execution and delivery by the Company or the Guarantors of, and the performance by the Company and the Guarantors of the transactions contemplated in this Agreementacts required by, the Transaction Documents, except for (1) such consents, approvals, authorizations or orders as have been obtained under the Securities Act 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) Underwriters in 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 manner contemplated in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counselthis Agreement, the effect Disclosure Package and the Final Prospectus. In addition, such counsel shall also state that it has participated in conferences with officers and other representatives of which violation or default would be material to the Company and its subsidiaries taken the Guarantors (as a whole.
(vii) This Agreement and, to you and your counsel have done); that at such conferences it has made inquiries of such officers and representatives and discussed 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 contents 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 Disclosure Package 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 that 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 assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement Statement, the Disclosure Package and the Final Prospectus (Prospectus, except as to those matters stated expressly set forth in paragraph paragraphs (ii) of such opinion)and (iii) above. However, subject to the foregoing, such counsel has shall state that no reason facts have come to its attention that have caused it to believe that (i) that the Registration Statement, as of its effective dateEffective Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, (ii) that the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading or (iiiii) that the Final Prospectus Prospectus, as of its date or on the Closing Date, contained or contains any an untrue statement of a material fact or omitted or omits to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except misleading; provided that, in each case, such counsel may state that it expresses no opinion need be expressed view as to the financial statements or statements, the related notes and schedules and other financial or information and statistical data or the Form T-1 included data, including, without limitation, all pro forma financial data, contained or incorporated by reference thereinin the Registration Statement, the Disclosure Package or the Final Prospectus. In rendering such opinion, such counsel may limit its opinion to (i) the laws of the State of New York and the federal laws of the United States of America, (ii) with respect to its opinions in paragraphs (iv), (v), (vi), (vii) and (viii) with respect to the Company and the Guarantors organized in the State of Delaware, the General Corporation Law of the State of Delaware, (iii) with respect to its opinions in paragraphs (iv), (vi), (vii) and (viii) with respect to the Guarantors organized in the State of Colorado, the laws of the State of Colorado, (iv) with respect to its opinions in paragraphs (iv), (vi) and (vii) with respect to the Guarantor organized in the State of Maryland, the General Corporation Law of the State of Maryland, and (v) with respect to its opinions in paragraphs (iv), (vi) and (vii) with respect to the Guarantor organized in the State of Virginia, the Stock Corporation Act of the Commonwealth of Virginia. 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 (A) as to matters of fact, to the extent he deems they deem proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and public officials. Such counsel may rely on a certificate officials and (B) for purposes of the Trustee with respect opinions in paragraphs (iv), (v), (vi) and (vii), on paragraphs (i) and (vii) in the opinion given pursuant to Section 6(b). References to the execution of Final Prospectus in this paragraph (c) shall also include any supplements thereto at the Securities by the Company and the authentication thereof by the TrusteeClosing Date.
(ed) The Representatives Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives 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.
(fe) The Company shall have furnished to the Representatives Representative a certificate of its Chief Executive Officerthe Company, its President signed by the principal financial or any Managing Director accounting officer of the Company and an executive vice president, vice president, manager or Vice President and its Chief Financial Officer or its Treasurerofficer of the general partner of each of the Guarantors, dated the day of 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, if any, used in connection with the offering of the Securities, and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company Issuers 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, 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 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 or, to the Company’s knowledge, threatened.; and
(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 (ziii) 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 Disclosure Package and the Final Prospectus and extending through the latest date as (exclusive 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5any supplement thereto), 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;no Material Adverse Effect.
(Df) as of a specified date not more than three business days prior The Company shall have requested and caused Ernst & Young LLP to have furnished to the date of Representative, at the letterExecution Time and at the Closing Date, there was any decrease “comfort letters,” in form and substance satisfactory to the capital stock or additional paid-in capitalRepresentative, 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 aconfirming that they are an independent registered public
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Series 2004 Bonds shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Issuer and the Company contained herein in this Underwriting Agreement, on the part of the Company contained in Article III of the Sale Agreement, and on the part of the Company contained in Section 6.01 of the Servicing Agreement as of the date hereof and the Closing Date, ; to the accuracy of any material the statements of the Issuer and the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Issuer and the Company of its respective their obligations hereunder 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.prior to 5:30 P.M., New York City time, on the second business day following after the date of this Agreement Underwriting Agreement, or such later other time and date and time as shall may be consented to in writing approved by the RepresentativesUnderwriters.
(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 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 shall be in effect, and no proceeding proceedings for that purpose is shall be pending before, or threatened by the Commission.
(ix) The Registration Statementby, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to Commission on 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 Closing Date; and the Rules.
(x) If Underwriters shall have received one or more certificates, dated the Securities are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance Closing Date 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 signed by an officer of the Company and its Named Subsidiary is duly qualified the Issuer, as appropriate, to do business as a foreign corporation, the effect that no such stop order is in good standing effect and is duly registered as a broker-dealerthat no proceedings for such purpose are pending before, broker, dealer or investment advisorto the knowledge of the Company or the Issuer, as the case may be, in each jurisdiction in which threatened by, 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 wholeCommission.
(xiic) 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 andPillsbury Winthrop LLP, 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 accuracyUnderwriters, 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 shall have furnished to the Representatives for matters not governed by New York law and may rely their written opinion (substantially in the form attached 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.
Annex I (ea) The Representatives shall have received from Underwriters' Counsel such opinion or opinionshereto), dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesSeries 2004 Bonds, the Indenture, the other Transaction Documents, the Registration Statement, the Final Prospectus Statement and other related matters matters; and such counsel shall have received such papers and information as the Representatives they may reasonably require, and the Company shall have furnished request to such counsel such documents as they request for the purpose of enabling enable them to pass upon such matters.
(fd) The Richards, Layton & ▇▇▇▇▇▇, ▇.▇., special Delaware counsel for the Company and the Issuer, 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 Treasurertheir written opinion (substantially in the form attached as Annex I (b) hereto), dated the day of the Closing Date, to the effect thatthat if properly presented to a Delaware court, a Delaware court applying Delaware law, would conclude that in order for a person to the best of their knowledge after due inquiry:
(i) The representations and warranties file a voluntary bankruptcy petition on behalf of the Company Issuer, the prior affirmative vote of its Sole Member and of all of its Managers (including the Independent Managers), as provided in this Agreement are true and correct in all material respects on and as Section 1.08 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 DateLLC Agreement is required.
(iie) 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 misleadingRichards, (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 Layton & ▇▇▇▇▇▇, 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 special Delaware counsel for the Company and the Issuer, shall have furnished to the Representatives their written opinion (substantially in the form attached as Annex I (c) hereto), dated the Closing Date, as required by Sections 2.10(8)(q) - 2.10(8)(v), 2.10(8)(x)-2.10(8)(aa) and 2.10(8)(cc)-2.10)(8)(ee) of the Indenture.
(f) Richards, Layton & ▇▇▇▇▇▇, and inquiries of certain officials of ▇.▇., special Delaware counsel for the Company and its subsidiariesthe Issuer, who shall have responsibility for financial and accounting matters of the Company and its subsidiaries, as to transactions and events subsequent furnished to the date of the most recent audited consolidated financial statements included Representatives their written opinion (substantially in the Registration Statement and form attached as Annex I (d) hereto), dated the Final ProspectusClosing Date, 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 thereunderregarding certain security interest matters.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Txu Electric Delivery Transition Bond Co LLC)
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Securities Underwritten Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date and as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 stop 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 have been issued and not withdrawn and no proceedings for such that purpose shall be pending before have been instituted or threatened by the Commission threatened; 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 filed or transmitted for filing with to the reasonable satisfaction of Commission in accordance with Rule 424 under the Representatives1933 Act.
(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.
(db) The Company shall have furnished delivered to the Representatives the opinion y▇▇ ▇ ▇▇▇tificate of a Deputy General Counsel or the Chief Legal Officer for the Company, signed by the President or a vice president or an assistant vice president of the Company and dated the day of the Closing Date, to the effect that:
that the signer of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, Final Prospectus and this Agreement and that (i) The Company has been duly organized the representations and is validly existing and in good standing under the laws warranties of the jurisdiction of its incorporation with all requisite corporate power Company in this Agreement are true 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 correct in all material respects as of the Closing Date with the same effect as if made on the Closing Date, (ii) the Company has, in all material respects, complied with all the agreements and satisfied all the conditions on its part that are required by this Agreement to be performed or satisfied at or prior to the descriptions thereof contained in the Final Prospectus.
Closing Date, (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 proceedings for that purpose is pending or threatened by the Commission.
(ix) The Registration Statementhave been instituted or, 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 thereinCompany's knowledge, threatened, (iv) 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 nothing 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 come to the Securities with the NYSE, and attention of such counsel has no reason officer that would lead such officer 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 Preliminary Prospectus 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 and (except that no v) subsequent to the respective dates as of which information is given in the Final Prospectus, there has not been any material adverse change in the general affairs capitalization, financial condition or results of operations of the Company.
(c) The Underwriters shall have received from (i) [___________], counsel for the Company and [______], and (ii) [___________],counsel for the Underwriters, favorable opinions, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. Such opinion need be expressed may (x) express its reliance as to factual matters on the financial statements representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement, (y) assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company, and (z) be qualified as an opinion only on the federal laws of the United States of America, the laws of the State of New York and the corporation law of the State of Delaware.
(d) The Representative shall have received from [___________], certified public accountants, two letters, one dated the date hereof and one dated the date of the Final Prospectus and satisfactory in form and substance to the Representative and counsel for the Underwriters, to the effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical data or nature set forth in the Form T-1 included or incorporated by reference therein). In rendering such opinion, such counsel may rely upon opinions Preliminary Prospectus and the Final Prospectus under the captions "Summary of local counsel satisfactory to the Representatives for matters not governed by New York law and may rely as to matters of fact, Prospectus Supplement--The Mortgage Loans," "Risk Factors" (to the extent he deems properof information regarding the Mortgage Loans therein), upon certificates or affidavits of officers and "The Mortgage Pool" agrees with the records 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 TrusteeOriginator.
(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[Reserved].
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (New Century Mortgage Securities LLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Capital Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Offerors contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Offerors made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives provisions hereof, to the performance by the Offerors of their joint and several obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, 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 Offerors 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) You shall have received an opinion, dated the Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Offerors, substantially in the form attached hereto as Exhibit A. Insofar as such opinion involves 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.
(c) You shall have received an opinion, dated the Closing Date, of counsel for the Company, substantially in the form attached hereto as Exhibit B.
(d) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel to the Company and the Trust, substantially in the form attached hereto as Exhibit C.
(e) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to JPMorgan Chase, substantially in the form attached hereto as Exhibit D.
(f) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the 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 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 substantially in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.form attached hereto as Exhibit E.
(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 The Company and the Final Prospectus.
(d) The Company Trust shall each have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Company, certificate dated the day of the Closing Date, and in the case of the Company, signed by the Chairman, any Vice Chairman, the President, any Vice President, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel, the Controller or any Deputy Controller and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company, and, in the case of the Trust, signed by one of the Regular Trustees, 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, and this Agreement and that:
(i) The Company has been duly organized the representations 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 warranties 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 advisorTrust, 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, Date and the Company or the Trust, as the case may be, 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 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 or, to their knowledge, threatened.; and
(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 (ziii) 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 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, or the Trust, 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Closing Date, a customary "comfort letter" (which may refer to letters previously delivered to the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives.
(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) and the Final Prospectus and extending through (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the latest date as letter or letters referred to in paragraph (h) of which 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 have monthly financial statementssubsidiaries, taken as a whole, or the Trust, 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Capital Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) and any Issuer Free Writing Prospectus.
(j) Subsequent to the Execution Time, there was shall not have been any decrease in the rating of the Capital Securities or the Company's junior subordinated 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 consolidated net loss or possible change in any such rating that does not indicate the direction of the possible change.
(IIIk) Prior to the Closing Date, the Offerors 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 with respect to the amounts offering of net capital Capital Securities, or excess net capital 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 with respect to such offering at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Offerors 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, there has been any decrease in such amounts as compared with counsel for the amounts shown in Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on 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 aClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and Carnival plc contained herein (or the accuracy in all material respects with respect to any representation or warranty on the part of the Company and Carnival plc which has no materiality qualification) as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company and Carnival plc made in any certificatescertificates pursuant to the provisions hereof, opinionsto the performance by each of the Company and Carnival plc of its obligations hereunder, affidavitsto the due execution and delivery of the Indenture, written statements to the absence of any event or letters condition which would give you the right to terminate this Agreement and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, 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, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission.
(b) At the Closing Date, the Company shall have furnished to you the Representatives opinion of the General Counsel to the Company and Carnival plc, or an Associate or Deputy General Counsel to the Company and Carnival plc that practices in the area of corporate and securities law, dated the Closing Date, substantially in the form of Exhibit A hereto.
(c) At the Closing Date, the Company shall have furnished to you the opinion and negative assurance letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and Carnival plc, each dated the Closing Date, substantially in the form of Exhibit B and C hereto, respectively, the opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ LLP, substantially in the form of Exhibit D hereto, and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, 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 substantially in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction form 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 ProspectusExhibit E hereto.
(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 Underwriters shall have received from Sidley Austin LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto), any Issuer Free Writing Prospectus and other related matters as the Representatives may reasonably require, and the Company and Carnival plc shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(fe) The Company and Carnival plc shall have furnished to the Representatives Underwriters a certificate of its Chief Executive Officerthe Company and of Carnival plc, its signed by any two officers of the Company and Carnival plc, each of whom is a Vice President, Senior Vice President or any Managing Director or Executive Vice President of the Company and its Chief Financial Officer or its TreasurerCarnival plc, dated the day of the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments to any of the foregoing and this Agreement and that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company and Carnival plc 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, Date and each of the Company and Carnival plc 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 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 or threatenedincorporated by reference in the Disclosure Package and the Final Prospectus, the Company has made all filings with the Commission and announcements, in either case required to be made by the Act or the Exchange Act.
(xf) 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 Underwriters shall have received from PricewaterhouseCoopers LLP, independent registered public accounting firm for the statements therein not misleading, (y) Company and Carnival plc at 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, Execution Time 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 at the Closing Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letterletters, dated as of the day Execution Time and as of the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent auditors with respect to the Company and Carnival plc 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 respective applicable published rules and regulations thereunder.
(ii) On the basis of a reading thereunder and containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited, unaudited consolidated and pro forma financial statements of the Company statements, as applicable, and its subsidiaries, if any, included certain financial information contained or incorporated by reference in the Registration Statement and Statement, the Final Preliminary 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.
(Cg) (I) as of Subsequent to the latest date Execution Time or, if earlier, the dates as of which the Company and its subsidiaries have monthly financial statements, there was any decrease information is given in the capital stock, additional paid-in capital Disclosure Package (exclusive of any amendment 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, (IIsupplement thereof) 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 (exclusive of any supplement thereto), there shall not have been (i) any decrease or increase specified in the latest date as letter or letters referred to in paragraph (f) of which this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business (including the results of operations or management) or properties of the Company or Carnival plc and its their respective subsidiaries have monthly financial statementstaken as a whole, there was a consolidated net loss 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 (IIIii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with respect 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).
(h) Except as disclosed in the Disclosure Package, subsequent to the amounts Execution Time, (i) there shall not have been any downgrade in the credit ratings of net capital any of the Company’s or excess net capital of Carnival plc’s debt securities by ▇▇▇▇▇’▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ filed pursuant to Commission Rule 17a-5Companies, there has Inc. (“S&P”), and (ii) neither the Company nor Carnival plc shall have been any decrease in such amounts as compared placed under special surveillance, with the amounts shown in the most recent consolidated financial statements included in the Registration Statement and the Final Prospectus;negative implications, by Moody’s or S&P.
(Di) as of a specified date not more than three business days prior Prior to the date of the letterClosing Date, there was any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and its subsidiariesCarnival plc shall have furnished to the Underwriters such further information, certificates and documents as compared with the amounts shown in the most recent consolidated statement of financial condition Underwriters may reasonably request. If any of the Company and its subsidiaries included conditions specified in the Registration Statement and the Final Prospectus; except this Section 5 shall not have been fulfilled in all instances 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 increases the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or decreases set forth in at any time prior to, the Closing Date by the Representatives and such letter, in which case the letter cancellation shall be awithout liability of any party to any other party, except to the extent provided in Sections 4 and 6. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of each of the Company contained herein as of the date hereof and the Closing Date (for purposes of this Section 5 “Closing Date” shall refer to the Closing Date for the Initial Securities and any Date of Delivery, if different, for the Optional Securities), to the accuracy of any material the statements of the officers of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective covenants and other obligations hereunder and to the following additional conditions:
(a) The Final Registration Statement, including any Rule 462(b) Registration Statement, has become effective as of the Closing Date and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; the Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than 5:00 p.m., New York City time, on 424(b) under the second business day following Act within the date of this Agreement or applicable time period prescribed for such later date and time as shall be consented to in writing filing by the Representatives.
(brules and regulations under the Act and in accordance with Section 4(A)(a) No hereof; the final term sheet contemplated by Section 4(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending or preventing the effectiveness use of the Registration Statement, as amended from time to time, Prospectus or suspending the qualification of the Indenture, any Issuer Free Writing Prospectus shall be in effect and no proceedings for such purpose shall be pending before have been initiated or threatened by the Commission Commission; and any all 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 your reasonable satisfaction.
(b) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the reasonable satisfaction of Company, shall have furnished to the RepresentativesRepresentative a favorable opinion, dated the Closing Date, in form and substance satisfactory to counsel for the Underwriters.
(c) Since The Representative shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may reasonably require.
(d) At the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement Pricing Disclosure Package, any material adverse change in the financial condition, earnings, or business affairs of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Final Prospectus, there Representative 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 received a certificate of the RepresentativesChief Executive Officer, makes it impracticable President or inadvisable to proceed with the offering and delivery an Executive Vice President of the Securities as contemplated by Company and of the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the opinion chief financial officer or chief accounting officer of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day as 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 Statementthere has been no such material adverse change, 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 herein are true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
, and (iiiv) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatenedare pending or, to their knowledge, contemplated by the Commission.
(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
(ge) At the Closing Datetime of the execution of this Agreement, a nationally recognized firm of independent public accountants the Representative shall have furnished to the Representatives received from KPMG LLP a letterletter dated such date, 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 RepresentativesRepresentative, stating containing statements and information of the type ordinarily included in effect that:
(i) In their opinion, accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements of the Company and its subsidiaries, and the supporting schedules, included certain financial information contained in the Registration Statement and the Final Pricing 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 such letter.
(f) At the Closing Date, the Representative shall have received from KPMG LLP a letter, there was any decrease dated as of the Closing Date, to the effect that they reaffirm the statements made in the capital stock or additional paid-in capitalletter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(g) Since the execution of this Agreement, there shall not have occurred a downgrading in, or increase in long-term indebtedness withdrawal of, the rating assigned to any securities of the Company and or any of its subsidiariessubsidiaries by any “nationally recognized statistical rating organization”, as compared with that term is defined by the amounts shown in Commission for purposes of Rule 436(g)(2) under the most recent consolidated statement Act, and no such organization shall have publicly announced that it has under surveillance or review its rating of financial condition the Securities or any of the other securities of the Company and or any of its subsidiaries included subsidiaries.
(h) At the date of this Agreement, the Representative shall have received an agreement substantially in the Registration Statement form of Exhibit A hereto signed by the persons listed on Schedule D hereto.
(i) The Company shall have filed a subsequent listing application and any required supporting documentation relating to the Final ProspectusConversion Shares with the New York Stock Exchange.
(j) At the Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties of the Company, or the fulfillment of any of the conditions, herein contained; except and all proceedings taken by the Company in all instances for increases or decreases set forth in such letter, in which case connection with the letter issuance and sale of the Securities as herein contemplated shall be asatisfactory in form and substance to counsel for the Underwriters. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 4(B) and except that Sections 1, 6, 7, 8 and 15 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Applicable Time of Sale, the Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus 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 pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice by the Commission objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(cb) Since ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the respective dates as of which information is given in the Registration Statement and the Final ProspectusCompany, 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 Companyits opinion, dated the day of Closing Date and addressed to the Closing DateRepresentatives, to the effect that:
(i) The the Company has been duly organized and is validly existing and in good standing subsisting as a limited liability company under the laws of the jurisdiction Commonwealth of its incorporation Pennsylvania, with all requisite corporate full limited liability company power and authority under its operating agreement to own or lease, as the case may be, and to 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 Disclosure Package and the Final Prospectus;
(Dii) as of a specified date not more than three business days prior to Exelon is the date of the letter, there was any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness only member of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition owns all of the Company Company's outstanding limited liability company interests;
(iii) the Indenture is in due and proper form, has been duly and validly authorized by the necessary corporate action and has been qualified under the Trust Indenture Act, and no other authorization, approval, consent, certificate or order of any state commission or regulatory authority or of any other federal commission or regulatory authority is required; the Indenture has been duly and validly executed and delivered and is a valid and enforceable instrument in accordance with its subsidiaries included in terms except as the Registration Statement and enforceability thereof may be limited by (1) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating or affecting the Final Prospectus; except in all instances for increases or decreases set forth in such lettercreditors' rights, in which case the letter shall be aand
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as at the Time of the date hereof Sale and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(a)(ii) 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 pursuant to within the applicable time periods prescribed for such filings by 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 433; and time as shall be consented to in writing by the Representatives.
(b) No no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any notice objecting to time, or suspending the qualification of the Indenture, its use shall be in effect have been issued and no proceedings for such that 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 Representativesinstituted or threatened.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer requested and caused Fenwick & West LLP, counsel for the Company, to furnish to the Representatives its opinion, dated the day of Closing Date and addressed to the Closing DateRepresentatives, to the effect that:
(i) the Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, 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; the Registration Statement and the Final Prospectus excluding the financial statements and other financial and statistical information contained therein, as well as that part of the Registration Statement that constitutes the Statement of Eligibility of the Trustee on Form T-1 under the Trust Indenture Act, as to which, in each case, such counsel need express no opinion) appeared on their face to be appropriately responsive in all material respects with the applicable requirements of the Act and the rules thereunder; and the Indenture appeared on its face to be appropriately responsive in all material respects with the requirements of the Trust Indenture Act;
(ii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus (excluding the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion), when they were filed with the Commission appeared on their face to be appropriately responsive in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder;
(iii) the Company has been duly organized incorporated and is validly existing and as a corporation in good standing under the laws of the jurisdiction State of its incorporation Delaware, with all requisite full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Disclosure Package and the Final Prospectus., and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except for such jurisdictions where the failure to be in good standing, have such corporate power or authority, or to so qualify would not, individually or in the aggregate, have a Material Adverse Effect;
(iiiv) The Securities the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Indenture Final Prospectus under the heading “Capitalization”; the Securities conform in all material respects to the descriptions description thereof contained in the Disclosure Package and the Final Prospectus.;
(iiiv) The the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms; terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(vi) the Securities have been duly authorized, authorized and executed and issued by the CompanyCompany and, and assuming due authentication by the Trustee and upon payment and delivery when authenticated in accordance with the Underwriting terms of the Indenture and delivered against payment therefor pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; provided however, that the foregoing is Indenture (subject to the effects customary qualifications and assumptions as to enforceability of bankruptcyremedies and to general principles of equity, insolvencyincluding, fraudulent conveyancewithout limitation, reorganizationconcepts of materiality, moratorium reasonableness, good faith and other similar laws relating to or affecting creditors' rights generallyfair dealing, general equitable principles (regardless of whether considered in a proceeding in equity or at law);
(vii) the statements set forth under the headings “Description of Notes”. and by “United States Federal Tax Considerations” in the Disclosure Package and the Final Prospectus, insofar as such statements purport to summarize certain provisions of the Securities and the Indenture or matters of applicable tax law and regulations, provide in all material respects an implied covenant of good faith accurate and fair dealing.summary of such provisions, laws and regulations;
(ivviii) No the execution and delivery of each of this Agreement, the Indenture, the issuance and sale of the Securities, and the consummation of any other of the transactions herein or therein provided, and the fulfillment of the terms hereof or thereof, do not (A) conflict with or result in a breach of any agreement or instrument filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K in the Company’s annual report on Form 10-K for the fiscal year ended April 2, 2010 (such list of agreements and instruments having been represented to such counsel by the Company as a list of all material agreements or instruments to which the Company or any of its subsidiaries is a party or is bound that would be required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K if such Annual Report on Form 10-K were filed as of the Closing Date); (B) result in violation of the charter or bylaws of the Company; or (C) result in the violation of any law or statute or any rule, regulation, judgment, order or decree known to such counsel specifically naming the Company as being bound of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its respective properties (provided that such counsel shall be entitled to limit their opinion to laws that, in the experience of such counsel, customarily apply to similar transactions);
(ix) this Agreement has been duly authorized, executed and delivered by the Company;
(x) no consent, approval, authorization authorization, filing with or order of any court or governmental agency or body is required for the consummation of in connection with the transactions contemplated in this Agreementherein, 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 UnderwritersUnderwriters in the manner contemplated in this Agreement, the Disclosure Package and the Final Prospectus and such other approvals (2specified in such opinion) as have been obtained;
(xi) the qualification Company is not and, after giving effect to the offering and sale of the Indenture under Securities and the Trust Indenture 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” as defined in the Investment Company Act, which has been obtained.
(v) Such counsel does not know without taking account of any contracts or other documents which are required exemption arising out of the number of holders of the Company’s securities. In rendering such opinion, such counsel may rely as 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 matters 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 andfact, 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 bounddeems proper, or result in a violation on certificates 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 responsible officers of the Company and its Named Subsidiary is duly qualified public officials. In addition to do business as a foreign corporationthe matters set forth above, 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 include a statement to the effect 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 StatementStatement (including the documents incorporated by reference therein and excluding the financial statements and other financial information contained herein, and that part of the Registration Statement that constitutes the Statement of Eligibility of the Trustee on Form T-1 under the Trust Indenture Act, in each case, as of its effective dateto which such counsel need express no opinion), as amended or supplemented at the 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 misleading; (ii) the Final Prospectus contains Disclosure Package (but not including any electronic “road shows”), as amended or supplemented at the Time of Sale, at the Time of Sale contained any untrue statement of a material fact or omits omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion need be expressed in each case, other than the financial statements, schedule and other financial information contained therein and statistical data derived therefrom, 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, which such counsel may rely upon opinions of local counsel satisfactory to the Representatives for matters not governed by New York law need express no opinion), 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.
(eiii) 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 date 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 (in each case, other than the same effect financial statements, schedule and other financial information contained therein and statistical data derived therefrom, 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 which such counsel need express no opinion) contained 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 contains any untrue statement of a material fact or omit omitted or omits 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 anot
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject subject, in their discretion, to the accuracy in condition that all material respects of the representations and warranties on the part and other statements of the Company contained herein are, at and as of the date hereof time of delivery of the Securities, true and correct, the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6, to the performance by condition that the Company shall have performed all of its respective obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) The Preliminary Prospectus and the Final Prospectus Prospectus, and any supplement thereto, 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 pursuant to within the applicable time periods prescribed for such filings by Rule 424 not later than 5:00 p.m.433; and the Registration Statement is effective, 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 no stop order suspending the effectiveness of the Registration StatementStatement or any notice that would prevent its use shall have been issued, as amended from time to time, or suspending the qualification of the Indenture, shall be in effect and no proceedings for such that 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 instituted or threatened;
(b) L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to the reasonable satisfaction Representatives their written opinion or opinions and letter with respect to the issuance and sale of the Representatives.Securities, subject to the limitations and qualifications set forth in such opinion or letter, dated the Closing Date, in form and substance satisfactory to you;
(c) C▇▇▇▇▇▇, Swaine & M▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Representatives their written opinion and letter, subject to the limitations and qualifications set forth in such opinion or letter, dated the Closing Date, in form and substance reasonably satisfactory to you;
(d) On the date hereof and also at the Closing Date, Deloitte & Touche LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto;
(e) Since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final ProspectusDisclosure Package, there shall not have been any change or decrease specified in the letter referred capital stock (except for the stock split that took effect on April 2, 2026, changes or adjustments made as a result of repurchases of common stock pursuant to publicly announced share repurchase programs in paragraph (g) existence on the date of this Section 6 Agreement, or in the ordinary course of business pursuant to employee equity plans in existence on the date of this Agreement, and other than the exercise of options outstanding on the date of this Agreement or the conversion of convertible notes outstanding on the date of this Agreement) or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity, or results of operations of the Company and its subsidiaries, taken as a whole, other than as set forth or contemplated in the Disclosure Package, the effect of which, in any such case, is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in this Agreement and in the Disclosure Package;
(f) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission in Section 3(a)(62) under the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock;
(g) On or after the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on The Nasdaq Global Select Market; (ii) a suspension or material limitation in trading in the Company’s securities on The Nasdaq Global Select Market; (iii) a general moratorium on commercial banking activities declared by either U.S. federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political, or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the good faith judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering and or the delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement and the Final Prospectus.Disclosure Package;
(dh) The Company shall have furnished or caused to be furnished to you at the Closing Date certificates of officers of the Company satisfactory to you as to the Representatives accuracy of the opinion representations and warranties of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day Company herein at and as of the Closing Date, as to the effect that:performance by the Company of all of its obligations hereunder to be performed at or prior to such date, as to the matters set forth in subsection (f) of this Section and as to such other matters as you may reasonably request; and
(i) The Company has been duly organized and is validly existing and in good standing under the laws shall have delivered executed copies 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, in each case in form 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 substance reasonably satisfactory to the Company and its subsidiaries taken as a wholethe Underwriters.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to provisions of this Section 6Section, to the performance by the Company of its respective obligations hereunder hereunder, the condition (in the case of the Underwriters) that the QIU shall have furnished to the Underwriters the letter referred to in clause (iv) of Section 2(b) hereof and to the following additional conditions:
(a) The Each Preliminary Final Prospectus that supplements the Basic Prospectus and the Final Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than 5:00 p.m.Commission, New York City timein each case, on within the second business day following the date of this Agreement or such later date and applicable 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 period prescribed for such purpose shall be pending before or threatened by the Commission filing 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 termsSection 5(a) hereof; 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 or any part thereof shall have been issued and no order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose is pending shall have been initiated or threatened by the Commission.;
(ixb) 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 Representative shall have received from V▇▇▇▇▇ & E▇▇▇▇▇ LLP, counsel for the Company, their opinion, dated the Closing Date and addressed to the Representative, to the effect set forth in Annex I hereto;
(c) The Representative shall have received from the General Counsel to the Company, his opinion, dated the Closing Date and addressed to the Representative, to the effect set forth in Annex II hereto;
(d) The Representative shall have received from Milbank, Tweed, H▇▇▇▇▇ & M▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentative, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.;
(fe) The Company shall have furnished to the Representatives Representative a certificate of its the Company, signed in their representative capacities by the Chief Executive Officer, its President or any Managing Director or Vice President Officer and its Chief Financial Officer or its Treasurerof the Company, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry:
(i) The 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, 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 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 has been issued and no proceedings for that purpose have been been, to the Company’s knowledge, instituted or threatened.threatened by the Commission; and
(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 (ziii) 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 or incorporated by reference in the Registration Statement and the Final Prospectus and extending through the latest date Prospectus, as of which the Company and its subsidiaries have monthly financial statements, there was a consolidated net loss amended or (III) with respect supplemented prior to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5Execution Time, there has been any decrease in such amounts as compared with no material adverse effect on the amounts shown in the most recent consolidated condition (financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three or otherwise), earnings, 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 properties of the Company and its subsidiaries, taken as compared with the amounts shown a whole, whether or not arising from transactions in the most recent consolidated statement ordinary course of business, except as set forth in or contemplated in the Final Prospectus, as amended or supplemented prior to the Execution Time, or as described in such certificate;
(f) At the Execution Time and the Closing Date, the Representative shall have received from Ernst & Young LLP a letter or letters dated such date or dates, in form and substance reasonably satisfactory to the Representative, 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 Final Prospectus, the Disclosure Package and any Issuer Free Writing Prospectus;
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement as amended or supplemented prior to the Execution Time, the Final Prospectus as amended or supplemented prior to the Execution Time or any Issuer Free Writing 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 condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries included subsidiaries, taken as a whole, whether or not arising from transactions in the Registration Statement and ordinary course of business, except as set forth in or contemplated in the Final Prospectus, as amended or supplemented prior to the Execution Time, 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, the Final Prospectus and any Issuer Free Writing Prospectus;
(h) 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; except and
(i) 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. If any of the conditions specified in this Section 6 shall not have been fulfilled in all instances for increases material respects when and as provided in this Agreement, or decreases set forth 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 Representative, 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 letter, in which case the letter cancellation shall be agiven 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 to the offices of Milbank, Tweed, H▇▇▇▇▇ & M▇▇▇▇▇ LLP at O▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date or such other place as the Representative shall so instruct.
Appears in 1 contract
Sources: Underwriting Agreement (Pioneer Natural Resources Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Trust contained herein as of the date hereof and the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to ▇▇▇▇▇▇▇ ▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6Agreement, to the performance by the Company and the Trust of its their 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 Declaration, the Guarantee Agreement or 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 or letters referred to in paragraph (gj) (k), (l) or (m) of this Section 6 7 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering and delivery of the Preferred 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 ▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇, counsel to the Company, dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized and is validly legally 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 statements made in the Final Prospectus under the captions "Description of Securities," "Certain Terms of the Preferred Securities," "Certain Terms of the Junior Subordinated Debt Securities," "Description of Preferred Securities," "Description of the Junior Subordinated Debt Securities," "Description of the Guarantee" and "Effect of Obligations Under the Junior Subordinated Debt Securities and the Indenture conform Guarantee" insofar as such statements purport to constitute summaries of the terms of the Preferred Securities, the Debentures and the Guarantee, constitute accurate summaries of the terms of the Preferred Securities, the Debentures and the Guarantee in all material respects to the descriptions thereof contained in the Final Prospectusrespects.
(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 Debentures have been duly authorized, executed and issued by the Company, and assuming due authentication by the Indenture Trustee and upon payment and delivery in accordance with as contemplated by the Underwriting AgreementFinal Prospectus, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; and the Guarantee Agreement has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery by the Guarantee Trustee, will constitute a legal, valid and binding obligation of the Company; 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 by 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 Indenture, the Declaration and the Guarantee Agreement 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 either of its Named Subsidiary Subsidiaries 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 and the extent applicable, the Delayed Delivery Contracts Declaration have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement, the Declaration, the Indenture and the Guarantee Agreement and any Delayed Delivery Contracts (collectively the "Transaction Documents") by the Company and the Trust 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 Subsidiaries 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 either of its Named Subsidiary Subsidiaries is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or either of its Named Subsidiary Subsidiaries or any order, rule or regulation known to such counsel of any court or governmental agency having jurisdiction over the Company, its Named Subsidiary Subsidiaries 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 Forms 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 Authorization for the listing of the Preferred Securities are to be listed on the NYSE, authorization therefor NYSE 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.
(xii) To such counsel's knowledge, the Trust is not a party to or otherwise bound by any agreement other than those described in the Final Prospectus.
(xiii) The Trust is not subject to registration as an "investment company" under the Investment Company Act of 1940, as amended. 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 (a) the financial statements or other financial or statistical data data, (b) information relating to The Depository Trust Company, Cedelbank and Euroclear, or (c) the Form Forms 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 Oklahoma law and may rely as to matters of fact, to the extent he or she deems proper, upon certificates or affidavits of officers of the Company, the Trustees, the Guarantee Trustee or the Indenture Trustee and public officials. Such counsel may rely on a certificate of the Indenture Trustee and the Guarantee Trustee with respect to the execution of the Securities Debentures and the Guarantee, respectively, by the Company Company, the authentication of the Debentures by the Indenture Trustee, and the authentication thereof execution of the Guarantee by the Guarantee 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 the opinion of its Chief Executive OfficerRainey, its President or any Managing Director or Vice President and its Chief Financial Officer or its TreasurerRoss, Rice & ▇▇▇▇▇, counsel to the Company, dated the day of the Closing Date, to the effect that, to the best of their knowledge after due inquiry:
(i) The representations Company has been duly organized and warranties is legally existing and in good standing under the laws of the Company in this Agreement are true and correct in all material respects on and as jurisdiction of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateFinal Prospectus.
(ii) The statements made in the Final Prospectus under the captions "Description of Securities," "Certain Terms of the Preferred Securities," "Certain Terms of the Junior Subordinated Debt Securities," "Description of Preferred Securities," "Description of the Junior Subordinated Debt Securities," "Description of the Guarantee" and "Effect of Obligations Under the Junior Subordinated Debt Securities and the Guarantee" insofar as such statements purport to constitute summaries of the terms of the Preferred Securities, the Debentures and the Guarantee, constitute accurate summaries of the terms of the Preferred Securities, the Debentures and the Guarantee in all material respects.
(iii) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms; and the Debentures have been duly authorized, executed and issued by the Company, and assuming due authentication by the Indenture Trustee and upon payment and delivery as contemplated by the Final Prospectus, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; and the Guarantee Agreement has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery by the Guarantee Trustee, will constitute a legal, valid and binding obligation of the Company; 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 stop consent, approval, authorization or order suspending of any Oklahoma court or governmental agency or body is required for the effectiveness consummation of the transactions contemplated by 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 the State of Oklahoma in connection with the purchase and distribution of the Securities by the Underwriters, and (2) the qualification of the Indenture, the Declaration and the Guarantee Agreement 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 has by the Securities Act or by the Rules which have not been issued and no proceedings for that purpose have been instituted filed as exhibits to the Registration Statement or threatenedincorporated therein by reference as permitted by the Rules.
(xvi) The To the best of such counsel's knowledge, neither the Company nor either of its Named Subsidiaries 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 the Declaration have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement, the Declaration, the Indenture and the Guarantee Agreement (collectively the "Transaction Documents") by the Company and the Trust 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 Subsidiaries 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 either of its Named Subsidiaries is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or either of its Named Subsidiaries or any order, rule or regulation known to such counsel of any court or governmental agency having jurisdiction over the Company, its Named Subsidiaries or any of their respective properties, the effect of which would be material to the Company and its subsidiaries taken as a whole.
(viii) 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.
(ix) To such counsel's knowledge, the Trust is not a party to or otherwise bound by any agreement other than those described in the Final Prospectus. 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 does not contain 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 omit omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, misleading or (yii) the Final Prospectus does not contain contains any untrue statement of a material fact or omit omits to state a any 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 misleadingmisleading (except that no opinion need be expressed as to (a) the financial statements or other financial or statistical data, (b) information relating to The Depository Trust Company, Cedelbank and Euroclear, or (zc) since the effective date Forms T-1 included or incorporated by reference therein). In rendering such opinion, such counsel may rely as to matters 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 Datefact, 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 extent he 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 ashe deems proper,
Appears in 1 contract
Sources: Underwriting Agreement (Oge Energy Capital Trust Ii)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Units described in Sections 2(a) and 2(b) hereof shall be subject to (i) the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof Execution Time, the Closing Date and (in the case of any Units delivered after the Closing Date, any settlement date pursuant to Section 3(b) hereof), (ii) the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates delivered pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ provisions hereof, ("Underwriters' Counsel"iii) pursuant to this Section 6, to the performance by the Company of its respective obligations hereunder hereunder, and to (iv) the following additional conditions:
(a) The Final Prospectus Registration Statement shall have been become effective (or, if a post-effective amendment is required to be filed with the Commission pursuant to Rule 424 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m., New York City timep.m. Eastern Standard Time, on the second business day following the execution date of this Agreement hereof or at such later date and time as shall be consented to the Representatives may approve in writing by and, at the Representatives.
Closing Date (band any settlement date pursuant to Section 3(b) No hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or suspending the any qualification of the Indenture, in any jurisdiction shall be in effect have been issued and no proceedings for such that purpose shall be pending before or have been initiated or, to the best knowledge of the Company, threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the RepresentativesCommission.
(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.
(db) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer Garza & Staples, P. C., counsel for the Company, a▇▇▇▇▇sed ▇▇ ▇▇▇ Underwriters and dated the day of Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Closing Date, Representatives 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, ; any required filing of the Prospectus or 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 best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceeding proceedings for that purpose is pending have been instituted or threatened by threatened; any request from the Commission.
Commission for additional information has been complied with; the Registration Statement and the Prospectus (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 thereinany supplements thereto) comply as to form in all material respects with the applicable requirements of the Securities Act and the Rules.
rules and regulations thereunder (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 except that such counsel need express no opinion with respect to the Securities with Financial Statements and schedules included in the NYSE, Registration Statement 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 distributionProspectus).
(xiii) Except as stated in the Prospectus, the Company does not own or control, directly or indirectly, any corporation, partnership, association or other entity.
(iii) The Named Subsidiary Company has been duly incorporated and is a duly organized and validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation in which it is chartered or organized, with all requisite full corporate power and corporate 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, corporation and is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as under the case may be, in laws of each jurisdiction in which the nature of the it conducts its business conducted by it or owns property and in which the ownership failure, individually or holding by lease of in the properties owned or held by it require such qualification or registration and where the failure aggregate, to be so qualify or register qualified would have a Material Adverse Effect. The Company has all necessary and material adverse effect on authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own its properties and conduct its business as described in the Company and its subsidiaries taken as Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a wholeMaterial Adverse Effect.
(xiiiv) All the outstanding The Company does not own any shares of capital stock or any other equity securities of any corporation or any equity interest in any firm, partnership, association or other entity other than as described in the Prospectus, except for ownership interests that would not have a Material Adverse Effect.
(v) The Company has an authorized share capitalization as set forth in the Prospectus; the capital stock of the Company's Named Subsidiary Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and non-assessable nonassessable and the certificates therefor are in valid and sufficient form in accordance with applicable state law; there are no other classes of stock outstanding except Common Stock; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; except as described in the Prospectus, there are no options, warrants or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities have been duly and validly authorized and, except for directorswhen issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights, and will conform in all respects to the description thereof contained in the Prospectus; the Warrants and the Representatives' qualifying shares, are owned by the Company or a subsidiary Warrants constitute valid and binding obligations of the Company free enforceable in accordance with their terms and clear the Company has reserved a sufficient number of any claimsshares of Common Stock for issuance upon exercise thereof; the Warrants and the Representatives' Warrants possess the rights, liens, encumbrances privileges and security interestscharacteristics as represented in the forms filed as exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the Representatives' Warrants) have been approved for listing on AMEX upon notice of issuance thereof; the certificates for the Securities are in valid and sufficient form. Each offer and sale of securities of the Company described in Item 15 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder.
(xiiivi) Such Other than as described in the Prospectus, there is no pending or, to the best knowledge of such counsel does not know of after reasonable investigation, threatened action, suit or proceeding before any litigation court or governmental agency, authority or body, domestic or foreign, or any governmental proceeding pending or threatened against arbitrator involving the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is a character required to be disclosed in the Final Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the best knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(viii) The Company has full corporate power and corporate authority to enter into and perform its obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement.
(ix) Neither the offering, issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Articles of Incorporation (or other charter document) or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument to which the Company is a party or by which its properties are bound, or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of its Articles of Incorporation or bylaws or, to the best knowledge of such counsel after reasonable investigation, in breach of or default under any of the terms of any indenture or other agreement or instrument to which it is a party or by which it or its properties are bound, which breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(x) Except as disclosed in the Prospectus, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and correctly summarized thereinsale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Such opinion Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(xi) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, and such as may be required under the Blue Sky laws of any jurisdiction.
(xii) To the best knowledge of such counsel after reasonable investigation, the Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could have a Material Adverse Effect. The Company is not involved in any labor dispute, nor, to the best knowledge of such counsel, is any labor dispute threatened.
(xiii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiv) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company.
(xv) The Company owns or possesses, or has the right to use pursuant to licenses, sublicenses, agreements, permissions or otherwise, adequate patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights necessary to carry on its business as described in the Prospectus, and, except as set forth in the Prospectus, neither such counsel nor, to the knowledge of such counsel, the Company has received any notice of either (i) default under any of the foregoing or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Adverse Effect, and counsel knows of no facts which could reasonably be anticipated to serve as the basis for any such notice. In addition, such counsel shall also contain a statement state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Final or Prospectus (except as and to those matters the extent stated in paragraph subparagraphs (iii) and (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such opinion), counsel that causes such counsel has no reason to believe that (i) the Registration Statement, as of its effective dateat the Effective Date and at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date (iior any settlement date pursuant to Section 3(b) the Final Prospectus hereof), contained or contains any untrue statement of a material fact or omitted or omits to state any 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 (except it being understood that such counsel need express no opinion need be expressed as comment with respect to the financial statements or Financial Statements and schedules and other financial or statistical data derived therefrom included in the Registration Statement or the Form T-1 included or incorporated by reference thereinProspectus). In rendering such opinion, such counsel may rely upon opinions of local counsel satisfactory References 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 TrusteeProspectus in this Section 6(b) shall include any supplements thereto.
(ec) The Representatives shall have received from Maurice J. Bates, LLC, counsel for the Underwriters' Counsel such opinion or opinions, dated the day of an ▇▇▇▇▇▇▇ ▇▇▇▇▇ the Closing DateDate (and any settlement date pursuant to Section 3(b) hereof), with respect to the issuance and sale of the Securities, and with respect to 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 may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished to the Representatives a certificate of the Company, signed by its Chief Executive Officer, its President or any Managing Director or Vice President Officer and its Chief Financial Officer or its TreasurerOfficer, dated the day of the Closing DateDate (and any settlement date pursuant to Section 3(b) hereof), to the effect thatthat each has carefully examined the Registration Statement, to the best of their knowledge Prospectus (and any supplements thereto) and this Agreement, and, after due inquiry, that:
(i) The representations and warranties As of the Company Closing Date (and any settlement date pursuant to Section 3(b) hereof), the statements made in this Agreement the Registration Statement and the Prospectus 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 the Prospectus do 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 .
(zii) since No order suspending the effective date effectiveness of the Registration Statement there has not occurred or the qualification or registration of the Securities under the securities or Blue Sky laws of any event required to be set forth jurisdiction is in an amended or supplemented prospectus which has not been so set forth. 14
(g) At the Closing Dateeffect and no proceeding for such purpose is pending before or, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letterknowledge of such officers, dated threatened or contemplated by the day Commission or the authorities of the Closing Date, confirming that they are independent auditors any such jurisdiction; and any request for additional information with respect to the Company within Registration Statement or the meaning Prospectus on the part of the Securities Act and in form and substance satisfactory staff of the Commission or any such authorities brought to the Representatives, stating in effect that:attention of such officers has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iiii) In their opinion, Since the consolidated financial statements respective dates as of the Company and its subsidiaries, and the supporting schedules, included which information is given in the Registration Statement and the Final Prospectus and audited by them comply as to form Prospectus, there has not been any change in all material respects with the applicable accounting requirements capital stock or long-term debt 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 subsidiariesCompany, if any, included except as set forth in or contemplated by the Registration Statement and the Final Prospectus and Prospectus, (y) there has not been any material adverse change in the general affairs, business, prospects, properties, management, results of operations or condition (financial or otherwise) of the latest unaudited consolidated financial statements made available Company, whether or not arising from transactions in the ordinary course of business, in each case, other than as set forth in or contemplated by the 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:
and (Az) the Company has not sustained 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 interference 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Initial Purchaser to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and the Closing Date (for purposes of this Section 5 “Closing Date” shall refer to the Closing Date for the Initial Securities and any Option Closing Date, if different, for the Optional Securities), to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the Representatives or provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) Each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, counsel for the Company, and Pillsbury ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special regulatory counsel for the Company, shall have furnished to this Section 6the Initial Purchaser a favorable opinion, dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaser, to the performance by the Company of its respective obligations hereunder effect set forth in Exhibits A 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.B hereto, 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 Representativesrespectively.
(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) The Initial Purchaser shall have been complied received from Sidley Austin LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, with respect to such matters as the reasonable satisfaction of the RepresentativesInitial Purchaser may reasonably require.
(c) Since At the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement Disclosure Package, any material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Final Prospectus, there Initial Purchaser 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 received a certificate of the RepresentativesChief Executive Officer, makes it impracticable President or inadvisable to proceed with the offering and delivery an executive officer of the Securities as contemplated by the Registration Statement Company and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Financial Officer for of the Company, dated the day as 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 Statementthere has been no such material adverse change, 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 herein are true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same (except that any such representations or warranties that are qualified in respect of materiality or material adverse effect as if made on the Closing Date, are true and correct in all respects) and (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing 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
(gd) At the Closing Datetime of the execution of this Agreement, a nationally recognized firm of independent public accountants the Initial Purchaser shall have furnished to the Representatives received from KPMG LLP a letterletter dated such date, 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 RepresentativesInitial Purchaser, stating in effect that:
(i) In their opinion, the consolidated financial containing 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, type ordinarily 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) accountants’ “comfort letters” to underwriters with respect to the period subsequent to the date of the most recent financial statements included and certain financial information contained 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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) Disclosure Package as of a specified date not more than three business days prior to the date of such letter.
(e) At the Closing Date, the Initial Purchaser shall have received from KPMG LLP a letter, there was any decrease dated as of the Closing Date, to the effect that they reaffirm the statements made in the capital stock or additional paid-in capitalletter furnished pursuant to subsection (d) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(f) Since the execution of this Agreement, there shall not have occurred a downgrading in, or increase in long-term indebtedness withdrawal of, the rating assigned to the Company or any securities of the Company and or any of its subsidiariessubsidiaries by any “nationally recognized statistical rating organization”, as compared with that term is defined by the amounts shown in Commission for purposes of Rule 436(g)(2) under the most recent consolidated statement of financial condition Act, and no such organization shall have publicly announced that it has under surveillance or review its rating of the Company and or any securities of the Company or any of its subsidiaries included (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating).
(g) The Securities shall have been approved by the FINRA for trading in the Registration Statement PORTAL Market and the Final Prospectus; except in all instances for increases or decreases set forth in such letter, in which case the letter shall be aeligible for clearance and settlement through DTC.
(h) The Company shall have filed a “Supplemental Listing Application of Additional Shares” and any required supporting documentation relating to the Conversion Shares with the Nasdaq Global Select Market.
(i) Prior to the Closing Date, the Company shall have furnished to the Initial Purchaser a letter substantially in the form of Exhibit C hereto from each officer and director of the Company listed on Exhibit D, addressed to the Initial Purchaser.
(j) At the Closing Date, counsel for the Initial Purchaser shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties of the Company, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to counsel for the Initial Purchaser. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Initial Purchaser at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 4(B) and except that Sections 1, 6, 7, 8 and 13 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 Company and the Manager contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any material statements officer of the Company and the Manager made in any certificates, opinions, affidavits, written statements or letters furnished certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Representatives or to shall have received (i) the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6LLP, counsel for the Company and the Manager to the performance by effect set forth in Exhibit B-1 hereto; (ii) 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 the opinion of a Deputy General Counsel or the Chief Legal Officer for the Companyopinion, dated the day as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company to the effect that:
set forth in Exhibit B-2 hereto; and (iiii) The Company has been duly organized and is validly existing and in good standing under the laws opinion, dated as of the jurisdiction Closing Date, of its incorporation ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company, to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably satisfactory to the counsel for the Underwriters, together with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in signed or reproduced copies of such letters for each of the Final Prospectusother Underwriters.
(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.
(ec) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of Closing Date and addressed to the Closing DateRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related such 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 their opinion as aforesaid, ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(fd) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officerthe Company, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated signed by the day chief executive officer of the Closing DateCompany and the principal financial officer of the Company, on behalf of the Company 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, to the best of their knowledge after due inquiry:
(i) The 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, 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 the Registration Statement has become effective under the Act and 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 threatenedincorporated 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).
(xe) 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 Manager shall have furnished to the Representatives a lettercertificate signed by the chief executive officer, dated president or a senior managing director of the day Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager 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 Manager 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 (ii) the Manager 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.
(f) At the Execution Time and at the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, stating together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in effect that:accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(ig) In their opinionSubsequent to the Execution Time or, if earlier, the consolidated 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 any change, or any development involving a prospective change, in or affecting the condition (financial statements or otherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, and the supporting schedules, included whether or not arising from transactions in the Registration Statement 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 is, in the sole judgment of the Representatives, so material and audited by them comply adverse as to form in all material respects make it impractical or inadvisable to proceed with the applicable accounting requirements offering, sale or delivery of the Securities Act as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Exchange Act and the related published rules and regulations thereunderFinal Prospectus (exclusive of any amendment or supplement thereto).
(iih) On At the basis of Execution Time and at the Closing Date, the Representatives shall have received a reading of certificate signed by the unaudited consolidated financial statements Chief Financial Officer of the Company certifying as to the preparation, completeness and its subsidiariesaccuracy of certain financial and statistical data relating to the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) FINRA, upon review, if any, included of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(k) 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.
(l) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the Registration Statement form of Exhibit A-1 and the Final Prospectus and A-2 hereto, signed by each of the latest unaudited consolidated financial statements made available parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. 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, letters 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 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 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 on 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 thereunderClosing Date.
(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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ 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 1 contract
Sources: Underwriting Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof 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 as of the Closing Date, to the accuracy of any material the statements of the Company made in any certificates, opinions, affidavits, written statements or letters certificates furnished pursuant to the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to this Section 6provisions hereof, 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 For 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 period from and after effectiveness of this Agreement or such later date and time as shall be consented prior to in writing by the Representatives.Closing Date:
(bi) No no stop order suspending the effectiveness of the Registration Statement, as amended from time or any post-effective amendment to time, or suspending the qualification of the IndentureRegistration Statement, shall be in effect and no proceedings for such purpose shall be pending before have been instituted or threatened by the Commission Commission;
(ii) the Company shall have filed the preliminary prospectus and any requests for additional information on the part of Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to be included in the Registration Statement or containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Prospectus or otherwiseTerm Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such rule or, to the extent applicable, under Rule 164(b) under the Securities Act; and
(iv) The Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have been complied with raised no objection to the reasonable satisfaction fairness and reasonableness of the Representativesunderwriting terms and arrangements.
(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.
(db) The Company shall have furnished to the Representatives Representative the opinion of a Deputy General Counsel or the Chief Legal Officer McGuireWoods LLP, counsel for the Company, dated the day of the Closing Date, to the effect thatof paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(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 State of its incorporation with all requisite Delaware, has the corporate power and authority to own and operate its properties and to conduct its business as described in the Final Disclosure Package and the Prospectus. Each , and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and its Named the Principal Subsidiary Bank is duly qualified or licensed to do business as a foreign corporation, is corporation in good standing and is duly registered as a broker-dealer, broker, dealer each jurisdiction in which such counsel has knowledge that the Company or investment advisorthe Principal Subsidiary Bank, as the case may be, in each jurisdiction in which the nature of the business conducted by it is required to be so qualified 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.licensed;
(xiiiii) All all the outstanding shares of capital stock of the Company's Named Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and non-assessable (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except for as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' ’ qualifying shares, ) are owned beneficially, directly or indirectly, by the Company or a subsidiary of the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens, liens or encumbrances and security interests.with respect thereto;
(xiiiiv) Such such counsel does not know of is without knowledge that there is (1) any litigation or any governmental proceeding pending or threatened against action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving 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 Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the statements made in the Base Prospectus under the headings “Description of Preferred Stock” and correctly summarized therein. Such opinion shall also contain a statement that although Description of Depositary Shares,” as supplemented, amended and/or superseded by the statements in the final prospectus supplement for the Shares dated the date of this Agreement under the headings “Description of the Preferred Stock” and “Description of the Depositary Shares,” insofar as they purport to constitute summaries of the material terms of the Deposit Agreement, the Depositary Shares and the Preferred Stock, constitute accurate summaries in all material respects;
(vi) the Registration Statement has been declared effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements, supporting schedules, footnotes and other financial, accounting and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, the Certificate of Designations and the Deposit Agreement, or the General Corporation Law of the State of Delaware is required for the execution, delivery and performance by the Company of its respective obligations under the this Agreement, the Certificate of Designations and the Deposit Agreement, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion;
(ix) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, will be entitled to the rights under, and the benefits of, the Deposit Agreement; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) none of the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement and the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Amended and Restated Certificate of Incorporation or Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any U.S. court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus, including any document incorporated by reference therein, consisting of financial statements, supporting schedules, footnotes and other financial, accounting and statistical information or statements in the Disclosure Package or the Prospectus concerning the securities and other commercial laws of countries or jurisdictions other than the United States, and it has not independently verified, is not passing upon and does not assume any assumes no responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and Statement, the Final Disclosure Package, or the Prospectus or any amendment or supplement thereto (except other than as to those matters stated in paragraph (iiv) above), nothing has come to its attention that has caused it to believe that such remaining portions of the Registration Statement or any amendment thereto, insofar as it relates to the offering of the Shares, as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion), such counsel has no reason contained or contains any untrue statement of a material fact or omitted or omits to believe that (i) state any material fact required to be stated therein or necessary to make the Registration Statementstatements therein not misleading or that, subject to the foregoing with respect to financial statements, supporting schedules, footnotes and other financial, accounting and statistical information, the Disclosure Package, insofar as it relates to the offering of the Shares, taken as a whole, as of its effective datethe Initial Sale Time, 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 statement therein, in the light of the circumstances under which they were made, not misleading (except misleading, or that no opinion need be expressed the Prospectus, as amended or supplemented, insofar as it relates to the financial offering of the Shares, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or other financial or statistical data or when any of the Form T-1 included or incorporated by reference therein)information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of New York and North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon opinions the opinion of local counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Representatives for matters not governed by New York law Underwriters; and may rely (B) as to matters of fact, to the extent he deems deemed proper, upon on certificates or affidavits of responsible officers of the Company, the Trustee Company and its subsidiaries 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.
(ec) The Representatives Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters' Counsel , such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Final Disclosure Package and the Prospectus and any other related matters as the Representatives 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.
(fd) The Company shall have furnished to the Representatives Representative a certificate of its Chief Executive Officerthe Company, its signed by any Managing Director, any Director, any Senior or other Vice President or the Treasurer or any Managing Director or Vice President and its Chief Financial Officer or its Treasurerother authorized officer of the Company, dated the day of the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and he or she is without knowledge that, to the best of their knowledge after due inquiry:
(i) The the representations and warranties of the Company contained in Section 1 of this Agreement are not true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has not performed or 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.;
(ii) No any stop order suspending the effectiveness of the Registration Statement has been issued and no or any proceedings for that purpose have been instituted or threatened.threatened by the Commission;
(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 (ziii) 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 Disclosure Package 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 ▇▇▇▇▇▇ determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ filed pursuant to Commission Rule 17a-5Prospectus, there has been any decrease in such amounts as compared with the amounts shown material adverse change or any development involving a prospective material adverse change in the most recent consolidated condition (financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three or other), earnings, 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 properties of the Company and its subsidiaries, taken as compared with the amounts shown a whole, whether or not arising from transactions in the most recent consolidated statement ordinary course of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; business, except in all instances for increases or decreases as set forth in such letteror contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding is pending to restrain or enjoin the issuance or delivery of the Shares, or which in any way affects the validity of the Shares.
(e) On the date hereof and on the Closing Date, the Representative shall have received a letter from PricewaterhouseCoopers LLP, dated as of the date hereof or the Closing Date, as applicable, in which case form and substance satisfactory to the letter shall be aRepresentative, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to financial statements and financial information i
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