Conditions of Obligation. The several obligations of the Underwriters to purchase the Firm Shares and the Additional Shares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company herein as of the Applicable Time, the Closing Date and any Option Closing Date, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and (in each case) to the following additional conditions precedent: (a) On the Closing Date, you shall have received: (1) The opinion (including the disclosure letter), dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, in form and substance satisfactory to you, to the effect that: (i) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus. (ii) This Agreement has been duly authorized, executed and delivered by the Company. (iii) The Shares have been duly authorized and validly issued and are fully paid and non-assessable. (iv) The authorized common stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus; (v) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States and the General Corporation Law of the State of Delaware for the issuance, sale and delivery of the Shares by the Company to the Underwriters have been obtained or made. (vi) The Company is not, and after giving effect to the offering and sale of the Shares and the application of proceeds therefrom will not be, an “investment company” as such term is defined in the 1940 Act. (vii) Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement, the General Disclosure Package and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the 1933 Act and the 1933 Act Regulations; between the date of the Prospectus and such Closing Date or Option Closing Date, as the case may be, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certificates and an opinion of certain officers of the Company, and letters addressed to you from the Company’s independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel’s understanding of the applicable law and the experience such counsel have gained through their practice under the 1933 Act, they will confirm to you that, in such counsel’s opinion, the Registration Statement as the date of the Prospectus, and the Prospectus as of the date of the Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; nothing that came to such counsel’s attention in the course of such review has caused such counsel to believe that (i) the Registration Statement, as of the date of the Prospectus, 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; (ii) the General Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, as of its date, 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; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of such Closing Date or Optional Closing Date, as the case may be, 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; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or the Prospectus except for those made under the captions “Description of Capital Stock” in the General Disclosure Package and the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common Stock” in the General Disclosure Package and the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, General Disclosure Package or the Prospectus. (2) The opinion, dated as of the Closing Date, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. (ii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus. (iii) The authorized and outstanding preferred stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus (iv) There are no pending or, to the best of such counsel’s knowledge, threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the General Disclosure Package or the Prospectus that are not disclosed as required. (v) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct. (vi) The issue and sale of the Shares does not, and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated, and the performance of the obligations hereunder, will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company, nor will such action result in any violation of the provisions of the charter or by-laws of the Company. (3) The opinion or opinions of your counsel, relating to the issuance and sale of the Shares as herein contemplated, such other matters as you may request and the Registration Statement, the General Disclosure Package and the Prospectus. (b) On the Closing Date, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Date, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of this Agreement, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (c) On each of the date hereof and the Closing Date, you shall have received from Ernst & Young LLP, a letter, dated as of the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, to the effect that: (i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations. (ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations. (iii) They have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board. (iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus. (v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that: (A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of delivery of such letter, there was any change in certain balance sheet items including the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in consolidated common shareholders’ equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except in each case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter; or (B) for the period from the date of the latest income statement included in the General Disclosure Package and the Prospectus to the date not more than three business days prior to the delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in certain income statement items including consolidated net income or consolidated net interest income, except for decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter. (vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the General Disclosure Package and the Prospectus (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 and its subsidiaries 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. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. The letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (d) On the Closing Date, Shearman & Sterling LLP, counsel for the Underwriters, shall have been furnished with such documents and opinions as it may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, 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 Shares as herein contemplated shall be satisfactory in form and substance to the Underwriters and their counsel. (e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. (f) In the event that the Underwriters exercise the option provided in Section 2 hereof to purchase all or any portion of the Additional Shares, the obligations of the
Appears in 1 contract
Conditions of Obligation. The several obligations Your obligation to act as Dealer Managers hereunder will at all times be subject, in your discretion, to the conditions that:
(a) All representations, warranties and other statements of each of the Underwriters to purchase the Firm Shares Offeror and the Additional SharesCompany contained herein are as of the date of this Agreement, as and at all times during the case may Exchange Offers through and including the latest Exchange Date will be, shall be subject to the accuracy true and correct.
(b) Each of the representations Offeror and warranties the Company at all times during the Exchange Offer will have performed all of its obligations hereunder theretofore to be performed.
(c) The Prospectus will have been either (i) filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act in accordance with Section 2(a) hereof or (ii) included in the Registration Statement; the Schedule TO will have been filed with the Commission in accordance with Section 2(a) hereof; no stop order suspending the effectiveness or use of the Registration Statement or Schedule TO or any part thereof will have been issued and no proceeding for that purpose will have been initiated or threatened by the Commission; and all requests for additional information on the part of the Company herein Commission will have been complied with to your reasonable satisfaction.
(d) On each Commencement Date (as of the Applicable Time, the Closing Date defined below) and any Option Closing each Exchange Date, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and (in each case) to the following additional conditions precedent:
(a) On the Closing Date, you shall have received:
(1) The opinion (including the disclosure letter), dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇, counsel to you, will have furnished to you, as Dealer Managers, an opinion or opinions, dated the respective date of delivery thereof, with respect to the incorporation of the Offeror and the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in authorized capitalization of the General Disclosure Package Offeror and the Prospectus.
(ii) This Agreement has been duly authorizedCompany, executed and delivered by the Company.
(iii) The Shares have been duly authorized and validly issued and are fully paid and non-assessable.
(iv) The authorized common stock validity of the Company conforms as to legal matters to Exchange Securities, the description thereof contained in each of the General Disclosure Package and the Prospectus;
(v) All regulatory consentsdue authorization, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States and the General Corporation Law of the State of Delaware for the issuance, sale execution and delivery of the Shares by the Company to the Underwriters have been obtained or made.
(vi) The Company is notthis Agreement, and after giving effect to the offering and sale of the Shares and the application of proceeds therefrom will not be, an “investment company” as such term is defined in the 1940 Act.
(vii) Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement, the General Disclosure Package and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the 1933 Act and the 1933 Act Regulations; between the date of the Prospectus Schedule TO and such Closing Date or Option Closing Date, as the case may be, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and other related matters were discussed and reviewed certificates and an opinion of certain officers of the Company, and letters addressed to you from the Company’s independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel’s understanding of the applicable law and the experience such counsel have gained through their practice under the 1933 Act, they will confirm to you that, in such counsel’s opinion, the Registration Statement as the date of the Prospectus, and the Prospectus as of the date of the Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; nothing that came to such counsel’s attention in the course of such review has caused such counsel to believe that (i) the Registration Statement, as of the date of the Prospectus, 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; (ii) the General Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, as of its date, 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; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of such Closing Date or Optional Closing Date, as the case may be, 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; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or the Prospectus except for those made under the captions “Description of Capital Stock” in the General Disclosure Package and the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common Stock” in the General Disclosure Package and the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, General Disclosure Package or the Prospectus.
(2) The opinion, dated as of the Closing Date, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(iii) The authorized and outstanding preferred stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus
(iv) There are no pending or, to the best of such counsel’s knowledge, threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the General Disclosure Package or the Prospectus that are not disclosed as required.
(v) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(vi) The issue and sale of the Shares does not, and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated, and the performance of the obligations hereunder, will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company, nor will such action result in any violation of the provisions of the charter or by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the issuance and sale of the Shares as herein contemplated, such other matters as you may reasonably request and the Registration Statement, the General Disclosure Package and the Prospectus.
(b) On the Closing Date, you shall such counsel will have received a certificate of the Chairmansuch papers and information as they may reasonably request to enable them to pass on such matters. "Commencement Date" means, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Date, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of this Agreement, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission.
(c) On each of the date hereof and the Closing Date, you shall have received from Ernst & Young LLP, a letter, dated as of the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinioneach Exchange Offer, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulationsdate on which such Exchange Offer commences.
(iii) They have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus.
(v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of delivery of such letter, there was any change in certain balance sheet items including the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in consolidated common shareholders’ equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except in each case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter; or
(B) for the period from the date of the latest income statement included in the General Disclosure Package and the Prospectus to the date not more than three business days prior to the delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in certain income statement items including consolidated net income or consolidated net interest income, except for decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the General Disclosure Package and the Prospectus (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 and its subsidiaries 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. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. The letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(d) On the Closing Date, Shearman & Sterling LLP, counsel for the Underwriters, shall have been furnished with such documents and opinions as it may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, 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 Shares as herein contemplated shall be satisfactory in form and substance to the Underwriters and their counsel.
(e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(f) In the event that the Underwriters exercise the option provided in Section 2 hereof to purchase all or any portion of the Additional Shares, the obligations of the
Appears in 1 contract
Sources: Dealer Managers Agreement (Usx Corp)
Conditions of Obligation. The several obligations of the Underwriters Your obligation to purchase the Firm Shares and the Additional Sharesact as Dealer Managers hereunder shall at all times be subject, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company herein as of the Applicable Time, the Closing Date and any Option Closing Datein your discretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and (in each case) to the following additional conditions precedentthat:
(a) On All representations, warranties and other statements of the Closing DateIssuers contained herein are now, you and at all times during the Tender Offers will be, true and correct in all material respects; provided that, any such representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects as of such times.
(b) The Issuers at all times during the Tender Offers shall have received:performed in all material respects all of their obligations hereunder theretofore required to have been performed.
(1c) The opinion (including the disclosure letter)x) ▇▇▇▇, dated as of the Closing DateWeiss, of ▇Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to Counsel of the CompanyIssuers, in form and substance satisfactory shall have furnished to you, to the effect that:
as Dealer Managers: (i) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The Shares have been duly authorized and validly issued and are fully paid and non-assessable.
(iv) The authorized common stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus;
(v) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States and the General Corporation Law of the State of Delaware for the issuance, sale and delivery of the Shares by the Company to the Underwriters have been obtained or made.
(vi) The Company is not, and after giving effect to the offering and sale of the Shares and the application of proceeds therefrom will not be, an “investment company” as such term is defined in the 1940 Act.
(vii) Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement, the General Disclosure Package and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the 1933 Act and the 1933 Act Regulations; between the date of the Prospectus and such Closing Date or Option Closing Date, as the case may be, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certificates and an opinion of certain officers of the Company, and letters addressed to you from the Company’s independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel’s understanding of the applicable law and the experience such counsel have gained through their practice under the 1933 Act, they will confirm to you that, in such counsel’s opinion, the Registration Statement as the date of the Prospectus, and the Prospectus as of the date of the Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; nothing that came to such counsel’s attention in the course of such review has caused such counsel to believe that (i) the Registration Statement, as of the date of the Prospectus, 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; (ii) the General Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, as of its date, 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; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of such Closing Date or Optional Closing Date, as the case may be, 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; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or the Prospectus except for those made under the captions “Description of Capital Stock” in the General Disclosure Package and the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common Stock” in the General Disclosure Package and the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, General Disclosure Package or the Prospectus.
(2) The opinion, dated as of the Closing Date, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(iii) The authorized and outstanding preferred stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus
(iv) There are no pending or, to the best of such counsel’s knowledge, threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the General Disclosure Package or the Prospectus that are not disclosed as required.
(v) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(vi) The issue and sale of the Shares does not, and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated, and the performance of the obligations hereunder, will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company, nor will such action result in any violation of the provisions of the charter or by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the issuance and sale of the Shares as herein contemplated, such other matters as you may request and the Registration Statement, the General Disclosure Package and the Prospectus.
(b) On the Closing Date, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Date, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of this Agreement, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission.
(c) On each of the date hereof and the Closing Date, you shall have received from Ernst & Young LLP, a letter, dated as of the date hereof or of commencement of the Closing Date, as the case may be, in form and substance satisfactory to youTender Offers, to the effect that:set forth in Exhibit A hereto and (ii) an opinion letter and a disclosure letter, each dated as of the date of payment for the Securities, to the effect set forth in Exhibit B hereto.
(iy) They are independent public accountants The Dealer Managers shall have received opinions dated the date of payment for the Securities from special counsel to the Issuers with respect to certain matters of health care and labor law as the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinionDealer Managers shall reasonably request, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus.
(v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of delivery of such letter, there was any change in certain balance sheet items including the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in consolidated common shareholders’ equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except in each case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter; or
(B) for the period from the date of the latest income statement included in the General Disclosure Package and the Prospectus to the date not more than three business days prior to the delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in certain income statement items including consolidated net income or consolidated net interest income, except for decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the General Disclosure Package and the Prospectus (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 and its subsidiaries 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 opinions to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. The letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(d) On the Closing Date, Shearman & Sterling LLP, counsel for the Underwriters, shall have been furnished with such documents and opinions as it may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, 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 Shares as herein contemplated shall be satisfactory in form and substance reasonably satisfactory to the Underwriters and their counselDealer Managers.
(e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(f) In the event that the Underwriters exercise the option provided in Section 2 hereof to purchase all or any portion of the Additional Shares, the obligations of the
Appears in 1 contract
Sources: Dealer Managers Agreement (Duane Reade Holdings Inc)
Conditions of Obligation. The several obligations of the Underwriters Your obligation to purchase the Firm Shares and the Additional Sharesact as Dealer Manager hereunder will at all times be subject, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company herein as of the Applicable Time, the Closing Date and any Option Closing Datein your discretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and (in each case) to the following additional conditions precedentthat:
(a) On All representations and warranties of the Closing Date, you shall have received:
(1) The opinion (including the disclosure letter), dated Offeror contained herein are as of the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The Shares have been duly authorized and validly issued and are fully paid and non-assessable.
(iv) The authorized common stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus;
(v) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States and the General Corporation Law of the State of Delaware for the issuance, sale and delivery of the Shares by the Company to the Underwriters have been obtained or made.
(vi) The Company is not, and after giving effect to the offering and sale of the Shares and the application of proceeds therefrom will not be, an “investment company” as such term is defined in the 1940 Act.
(vii) Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement, the General Disclosure Package and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the 1933 Act and the 1933 Act Regulations; between the date of the Prospectus and such Closing Date or Option Closing Date, as the case may be, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certificates and an opinion of certain officers of the Company, and letters addressed to you from the Company’s independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel’s understanding of the applicable law and the experience such counsel have gained through their practice under the 1933 Act, they will confirm to you that, in such counsel’s opinion, the Registration Statement as the date of the Prospectus, and the Prospectus as of the date of the Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; nothing that came to such counsel’s attention in the course of such review has caused such counsel to believe that (i) the Registration Statement, as of the date of the Prospectus, 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; (ii) the General Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, as of its date, 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; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of such Closing Date or Optional Closing Date, as the case may be, 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; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or the Prospectus except for those made under the captions “Description of Capital Stock” in the General Disclosure Package and the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common Stock” in the General Disclosure Package and the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, General Disclosure Package or the Prospectus.
(2) The opinion, dated as of the Closing Date, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(iii) The authorized and outstanding preferred stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus
(iv) There are no pending or, to the best of such counsel’s knowledge, threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the General Disclosure Package or the Prospectus that are not disclosed as required.
(v) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(vi) The issue and sale of the Shares does not, and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated, and the performance of the obligations hereunder, will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company, nor will such action result in any violation of the provisions of the charter or by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the issuance and sale of the Shares as herein contemplated, such other matters as you may request and the Registration Statement, the General Disclosure Package and the Prospectus.
(b) On the Closing Date, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Date, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of this Agreement, and at all times during the Exchange Offer through the Closing Date, will be true and correct in all material respects.
(b) The Offeror at all times during the Exchange Offer will have performed all of its obligations hereunder theretofore to be performed.
(c) The Prospectus will have been either (i) filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act in accordance with Section 2(a) hereof or (ii) that included in the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate and (iv) that Registration Statement; no stop order suspending the effectiveness of the Registration Statement has or any part thereof will have been issued and no proceedings proceeding for that purpose will have been initiated or threatened by the Commission.
(c) On each ; and all requests for additional information on the part of the date hereof and the Closing Date, you shall Commission will have received from Ernst & Young LLP, a letter, dated as of the date hereof or the Closing Date, as the case may be, in form and substance satisfactory been complied with to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus.
(v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of delivery of such letter, there was any change in certain balance sheet items including the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in consolidated common shareholders’ equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except in each case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter; or
(B) for the period from the date of the latest income statement included in the General Disclosure Package and the Prospectus to the date not more than three business days prior to the delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in certain income statement items including consolidated net income or consolidated net interest income, except for decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the General Disclosure Package and the Prospectus (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 and its subsidiaries 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. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. The letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereofyour reasonable satisfaction.
(d) On the Closing Date, Shearman & Sterling LLPgeneral counsel to the Offeror, counsel for the Underwriters▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, shall will have been furnished with such documents and opinions to you, as it may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedingsDealer Manager, or in order to evidence the accuracy and completeness of any of the representations and warranties, 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 Shares as herein contemplated shall be satisfactory an opinion in form and substance satisfactory to the Underwriters and their counselyou.
(e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on On the Closing Date, Shearman & Sterling will have furnished to you, as Dealer Manager, an opinion in form and substance satisfactory to you.
(f) In The Offeror will have furnished or caused to be furnished to you, on each of the event that Commencement Date and the Underwriters exercise Closing Date, a certificate or certificates of officers of the option provided Offeror reasonably satisfactory to you as to the accuracy of the representations and warranties of the Offeror at and as of such dates, as to the performance by the Offeror of all of its obligations hereunder to be performed at or prior to such date, as to the matters set forth in subsections (c) and (d) of this Section 2 hereof and as to purchase all such other matters as you may reasonably request.
(i) Neither the Offeror nor its Material Subsidiary will have sustained since the date of the latest audited financial statements included in, or incorporated by reference into, the Prospectus any loss or interference with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court of governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the latest date as of which information is given in the Prospectus there will not have been any change in the capital stock or long-term debt of the Offeror or its Material Subsidiary or any portion 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 Additional SharesOfferor and its Material Subsidiary, otherwise than as set forth or contemplated in the Prospectus, the obligations effect of thewhich, in any such case described in clause (i) or (ii), is, in the judgment of the Dealer Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the Exchange Offer or the delivery of Exchange Notes on the terms and in the manner contemplated in the Exchange Offer Material.
(h) On or after the date hereof (i) no downgrading will have occurred in the rating accorded the Offeror's 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 will have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Offeror's debt securities.
(j) On or after the Commencement Date there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or The NASDAQ National Market; (ii) a suspension or material limitation in trading in the Offeror's securities on The NASDAQ National Market; (iii) a general moratorium on commercial banking activities declared by either Federal, or New York or California State authorities; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this clause (iv) in the judgment of the Dealer Manager makes it impracticable or inadvisable to proceed with the Exchange Offer on the terms and in the manner contemplated in the Exchange Offer Material; or (v) the occurrence of a material adverse change in the existing financial, political or economic conditions in the United States or elsewhere which, in the judgment of the Dealer Manager would materially and adversely affect the financial markets or the success of the Exchange Offer.
Appears in 1 contract
Conditions of Obligation. The several obligations Your obligation to act as Joint Dealer Managers hereunder will at all times be subject, in your discretion, to the conditions that:
(a) All representations, warranties and covenants of the Underwriters to purchase the Firm Shares Company and the Additional SharesOperating Partnership contained herein are on and as of the date of this Agreement, as and at all times during the case may beExchange Offer and upon consummation thereof, shall will be subject true and correct in all respects.
(b) Each of the Company and the Operating Partnership at all times during the Exchange Offer and upon consummation thereof will have performed all of its obligations hereunder required to be performed.
(c) The Prospectus will have been either (i) filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act or (ii) included in the Registration Statement; no stop order suspending the effectiveness of the Registration Statement or any part thereof will have been issued and no proceeding for that purpose will have been initiated or, to the accuracy knowledge of the representations Company or the Operating Partnership, threatened by the Commission; and warranties all requests for additional information on the part of the Company herein as of the Applicable Time, the Closing Date and any Option Closing Date, Commission will have been complied with to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and (in each case) to the following additional conditions precedent:your reasonable satisfaction.
(ad) On the Closing Date, you shall have received:
(1) The opinion (including the disclosure letter), dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to you, will have furnished to you, as Joint Dealer Managers, (i) on each of the Companydate of commencement of the Exchange Offer (the “Commencement Date”) and the Settlement Date, an opinion or opinions with respect to such matters as you may reasonably request, and (ii) on each of the Commencement Date and the date of expiration of the Exchange Offer (the “Expiration Date”), a negative assurance letter, in each case dated the respective date of delivery thereof, and such counsel will have received such papers and information as they may reasonably request to enable them to pass on such matters.
(e) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Partnership, will have furnished to you, as Joint Dealer Managers, (i) on each of the Commencement Date and the Settlement Date, an opinion or opinions substantially in the form of Annex A-1 hereto and (ii) on each of the Commencement Date and the Expiration Date, a negative assurance letter substantially in the form of Annex A-2 hereto, in each case dated the respective date of delivery thereof.
(f) On each of the Commencement Date and the Settlement Date, Vernon, Vernon, Wooten, Brown, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., special North Carolina counsel to the Company and the Operating Partnership, will have furnished to you, as Joint Dealer Managers, an opinion or opinions, dated the respective date of delivery thereof, substantially in the form of Annex B hereto.
(g) On each of the effective date of the Registration Statement, the date on which the Company files with the Commission a Form 8-K with an earnings release for the quarter ended March 31, 2009, and the Expiration Date, PricewaterhouseCoopers LLP, the independent registered public accounting firm of the Company and the Operating Partnership, will have furnished to you a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to the effect that:
(i) The Company has corporate power financial statements and authority to owncertain financial information contained, lease and operate its properties and conduct its business as described or incorporated by reference, in the General Disclosure Package and the ProspectusExchange Offer Material.
(iih) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The Shares have been duly authorized and validly issued and are fully paid and non-assessable.
(iv) The authorized common stock Each of the Company conforms as and the Operating Partnership will have furnished or caused to legal matters be furnished to you, on the description thereof contained in each Expiration Date, a certificate or certificates (of an executive officer of the General Disclosure Package and the Prospectus;
(v) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws with specific knowledge of the United States and Company’s financial affairs, in the General Corporation Law case of the State of Delaware for the issuanceCompany, sale and delivery of the Shares by the Company to the Underwriters have been obtained or made.
(vi) The Company is not, and after giving effect to the offering and sale general partner of the Shares and Operating Partnership, in case of the application of proceeds therefrom will not be, an “investment company” as such term is defined in the 1940 Act.
(viiOperating Partnership) Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement, the General Disclosure Package and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the 1933 Act and the 1933 Act Regulations; between the date of the Prospectus and such Closing Date or Option Closing Date, as the case may be, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certificates and an opinion of certain officers of the Company, and letters addressed to you from the Company’s independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel’s understanding of the applicable law and the experience such counsel have gained through their practice under the 1933 Act, they will confirm to you that, in such counsel’s opinion, the Registration Statement as the date of the Prospectus, and the Prospectus as of the date of the Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; nothing that came to such counsel’s attention in the course of such review has caused such counsel to believe that (i) the Registration Statement, as of the date of the Prospectus, 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; (ii) the General Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, as of its date, 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; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of such Closing Date or Optional Closing Date, as the case may be, 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; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or the Prospectus except for those made under the captions “Description of Capital Stock” in the General Disclosure Package and the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common Stock” in the General Disclosure Package and the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, General Disclosure Package or the Prospectus.
(2) The opinion, dated as of the Closing Date, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(iii) The authorized and outstanding preferred stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus
(iv) There are no pending or, to the best of such counsel’s knowledgehis, threatened lawsuits her or claims against the Company or any subsidiary of the Company that are required to be disclosed in the General Disclosure Package or the Prospectus that are not disclosed as required.
(v) To the best of such counsel’s its knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(vi) The issue and sale of the Shares does not, and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated, and the performance of the obligations hereunder, will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company, nor will such action result in any violation of the provisions of the charter or by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the issuance and sale of the Shares as herein contemplated, such other matters as you may request and the Registration Statement, the General Disclosure Package and the Prospectus.
(b) On the Closing Date, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Date, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of this Agreement, (ii) after reasonable investigation: that the representations and warranties of the Company contained and the Operating Partnership in Section 1 this Agreement are true and correct with the same force and effect as though expressly made at and as of such dates; that subsequent to the date of the most recent financial statements of the Company and the Operating Partnership which are incorporated by reference into the Exchange Offer Material, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company, the Operating Partnership and their subsidiaries taken as a whole except as set forth in the Exchange Offer Material or as described in such certificate, (iii) ; that the Company has and the Operating Partnership have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder by the Company and the Operating Partnership at or prior to such dates; that the date matters set forth in subsection (c) of this Section 6 are true and correct; and to the accuracy as to such other matters as you may reasonably request.
(i) On or after the Commencement Date, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company, the Operating Subsidiary and their subsidiaries, each taken as a whole which, in the judgment of the Joint Dealer Managers, is material and adverse and makes it impractical or inadvisable to proceed with making and/or consummating the Exchange Offer; (ii) any downgrading in the rating of any debt securities of the Company or the Operating Partnership 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 or the Operating Partnership (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such certificate and rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Joint Dealer Managers, be likely to prejudice materially the success of the making and/or the consummation of the Exchange Offer; (iv) that no stop order suspending any material suspension or material limitation of trading in securities generally on the effectiveness New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Registration Statement has been issued and no proceedings for that purpose have been initiated Company or threatened the Operating Partnership on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the CommissionUnited States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Joint Dealer Managers, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with making and/or consummation of the Exchange Offer.
(cj) On each The Company shall have issued the Shares to the tendering holders of Convertible Notes in accordance with the terms of the date hereof Contribution Agreement, dated April 9, 2009, between the Company and the Closing DateOperating Partnership .
(k) It shall not have become unlawful under any law or regulation, you shall have received from Ernst & Young LLPfederal, a letterstate or local, dated as of for the date hereof Joint Dealer Managers to render services pursuant to this Agreement, or the Closing Dateto continue so to act, as the case may be, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(iil) In their opinion, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus.
(v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of delivery of such letter, there was any change in certain balance sheet items including the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in consolidated common shareholders’ equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except in each case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter; or
(B) for the period from the date of the latest income statement included in the General Disclosure Package and the Prospectus to the date not more than three business days prior to the delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in certain income statement items including consolidated net income or consolidated net interest income, except for decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the General Disclosure Package and the Prospectus (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 and its subsidiaries 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. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. The letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(d) On the Closing Date, Shearman & Sterling LLP, counsel for the Underwriters, Shares shall have been furnished with such documents and opinions as it may reasonably require approved for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, 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 Shares as herein contemplated shall be satisfactory in form and substance to the Underwriters and their counsel.
(e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect listing on the Closing DateNew York Stock Exchange subject to notice of issuance.
(f) In the event that the Underwriters exercise the option provided in Section 2 hereof to purchase all or any portion of the Additional Shares, the obligations of the
Appears in 1 contract
Sources: Dealer Manager Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Obligation. The several Your obligations to act as Dealer Managers hereunder will at all times be subject, in your discretion, to the conditions that:
(a) All representations, warranties and other statements of the Underwriters to purchase the Firm Shares and the Additional SharesOfferor contained herein are, as of the case may bedate of this Agreement, shall be subject and, at all times prior to the accuracy expiration of the representations Exchange Offer and warranties Consent Solicitation, will be true and correct in all material respects.
(b) The Offeror at all times during the Transactions will have performed all of its obligations hereunder theretofore to be performed.
(c) The Prospectus will have been either (i) filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act in accordance with Section 2(a) hereof or (ii) included in the Registration Statement; no stop order suspending the effectiveness of the Registration Statement or any part thereof will have been issued and no proceeding for that purpose will have been initiated or threatened by the Commission; and all requests for additional information on the part of the Company herein as Commission will have been complied with to the Lead Dealer Manager’s reasonable satisfaction.
(d) On or prior to the Exchange Date, the Proxy Solicitation shall have terminated and the shareholders of the Applicable Time, Offeror shall have approved the Closing Date and any Option Closing Date, to increase in the accuracy of Offeror’s authorized capital stock as contemplated by the statements of Proxy Statement.
(e) On the Company’s officers made in any certificate furnished date on which the Offeror accepts for payment or exchange Outstanding Notes tendered pursuant to the provisions hereof, Exchange Offer or consents delivered pursuant to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and Consent Solicitation (in each case) to the following additional conditions precedent:
(a) On the Closing “Exchange Date, you shall have received:
(1) The opinion (including the disclosure letter”), dated as of the Closing DateSkadden, of ▇Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to ▇▇▇▇▇▇▇▇▇ & Company, Inc., will have furnished to ▇▇▇▇▇▇▇▇▇ & Company, Inc., an opinion or opinions, reasonably acceptable to ▇▇▇▇▇▇▇▇▇ & Company, Inc.
(f) On the Exchange Date, ▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, counsel to the CompanyOfferor, will have furnished to each Dealer Manager, an opinion or opinions dated the respective date of delivery thereof substantially in the form of Annex A hereto.
(g) On each of the days on which the Exchange Offer and Consent Solicitation commences (the “Commencement Date”) and the Exchange Date and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, each will have furnished to each Dealer Manager a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to youit, to the effect that:
(i) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described set forth in the General Disclosure Package and the ProspectusAnnex B hereto.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iiih) The Shares Offeror will have been duly authorized and validly issued and are fully paid and non-assessable.
(iv) The authorized common stock of the Company conforms as furnished or caused to legal matters be furnished to the description thereof contained in Dealer Managers, on each of the General Disclosure Package Commencement Date and the Prospectus;
(v) All regulatory consentsExchange Date, authorizations, approvals and filings required to be obtained a certificate or made by the Company under the Federal laws certificates of officers of the United States and the General Corporation Law of the State of Delaware for the issuance, sale and delivery of the Shares by the Company Offeror satisfactory to the Underwriters have been obtained or made.
(vi) The Company is not, and after giving effect to the offering and sale of the Shares and the application of proceeds therefrom will not be, an “investment company” as such term is defined in the 1940 Act.
(vii) Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement, the General Disclosure Package and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company it as to the requirements accuracy of the 1933 Act and the 1933 Act Regulations; between the date of the Prospectus and such Closing Date or Option Closing Date, as the case may be, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certificates and an opinion of certain officers of the Company, and letters addressed to you from the Company’s independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel’s understanding of the applicable law and the experience such counsel have gained through their practice under the 1933 Act, they will confirm to you that, in such counsel’s opinion, the Registration Statement as the date of the Prospectus, and the Prospectus as of the date of the Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; nothing that came to such counsel’s attention in the course of such review has caused such counsel to believe that (i) the Registration Statement, as of the date of the Prospectus, 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; (ii) the General Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, as of its date, 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; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of such Closing Date or Optional Closing Date, as the case may be, 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; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or the Prospectus except for those made under the captions “Description of Capital Stock” in the General Disclosure Package and the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common Stock” in the General Disclosure Package and the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, General Disclosure Package or the Prospectus.
(2) The opinion, dated as of the Closing Date, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(iii) The authorized and outstanding preferred stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus
(iv) There are no pending or, to the best of such counsel’s knowledge, threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the General Disclosure Package or the Prospectus that are not disclosed as required.
(v) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(vi) The issue and sale of the Shares does not, and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated, and the performance of the obligations hereunder, will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company, nor will such action result in any violation of the provisions of the charter or by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the issuance and sale of the Shares as herein contemplated, such other matters as you may request and the Registration Statement, the General Disclosure Package and the Prospectus.
(b) On the Closing Date, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Date, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of this Agreement, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made Offeror at and as of such dates, as to the date performance by the Offeror of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on of its part obligations hereunder to be performed or satisfied at or prior to such date, as to the date of such certificate matters set forth in subsections (c) and (ivh) that no stop order suspending of this Section and as to such other matters as the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the CommissionLead Dealer Manager may reasonably request.
(cA) On each Neither the Offeror nor any of the date hereof and the Closing Date, you shall have received from Ernst & Young LLP, a letter, dated as of the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They will have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries sustained since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the latest audited financial statements included in, or incorporated by reference into, the Prospectus any loss or interference with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court of governmental action, order or decree, otherwise than as set forth or contemplated in the General Disclosure Package Prospectus, and the Prospectus.
(vB) They have performed specified procedures, not constituting an audit, including a reading of since the latest available interim financial statements date as of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included which information is given in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date Prospectus there will not more than three business days prior to the date of delivery of such letter, there was have been any change in certain balance sheet items including the capital stock of the Company and its consolidated subsidiaries, any increase in or long-term debt of the Company and Offeror or any of its consolidated subsidiaries or any decreases change, or any development involving a prospective change, in consolidated common or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company Offeror and its consolidated subsidiaries, otherwise than as set forth or contemplated in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except the effect of which, in each any such case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter; or
clause (A) or (B) for ), is, in the period from the date judgment of the latest income statement included in Dealer Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the General Disclosure Package and the Prospectus to the date not more than three business days prior to Exchange Offer or the delivery of such letter, there were any decreases, as compared with the corresponding period New Notes on the terms and in the preceding year, manner contemplated in certain income statement items including consolidated net income or consolidated net interest income, except for decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letterTransaction Material.
(vij) They On or after either the Commencement Date or the Exchange Date there shall not have compared certain agreed dollar amounts occurred any of the following: (i) a suspension or percentages derived from such dollar amountsmaterial limitation in trading in securities generally on NASDAQ; (ii) and other financial information included a suspension or material limitation in trading in the General Disclosure Package and Offeror’s securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Texas State authorities or a material disruption in commercial banking or securities settlement or clearance services in the Prospectus 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 each case to financial, political or economic conditions in the extent that United States or elsewhere, if the effect of any such dollar amounts, percentages and other financial information are derived from event specified in clause (iv) or (v) in the general accounting records judgment of the Company and its subsidiaries subject Lead Dealer Manager makes it impracticable or inadvisable to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) proceed with the results obtained from inquiries, a reading of such general accounting records Transactions on the terms 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. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included manner contemplated in the General Disclosure Package and the Prospectus for purposes of this subsection. The letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereofTransaction Materials.
(dk) On the Closing Exchange Date, Shearman & Sterling LLP, counsel for the Underwriters, each Dealer Manager shall have been furnished with such documents and opinions as it may reasonably require for the purpose of enabling them to pass upon the issuance and sale received copies of the Shares as herein contemplated opinions of counsel and related proceedings, or in order other documents that are delivered to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company Trustee in connection with the issuance and sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Underwriters and their counselSupplemental Indenture.
(el) The “lock-up” agreementsOn or promptly after the Exchange Date, each substantially in of the form of Exhibit A hereto, between you Supplemental Indenture shall have been executed by the Offeror and the officers Trustee and directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall will be in full force and effect on the Closing Dateeffective.
(f) In the event that the Underwriters exercise the option provided in Section 2 hereof to purchase all or any portion of the Additional Shares, the obligations of the
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Conditions of Obligation. Your obligation to act as Dealer Manager hereunder shall at all times be subject, in your discretion, to the conditions that:
(a) All representations, warranties and other statements of each Note Party herein are, at all times during the Exchange Offer, true and correct in all material respects.
(b) Each Note Party at all times during the Exchange Offer shall have performed all of its obligations hereunder theretofore required to be performed.
(c) The several obligations Prospectus will have been either (i) filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act or (ii) included in the Registration Statement; no stop order suspending the effectiveness of the Underwriters to purchase the Firm Shares Registration Statement or any part thereof will have been issued and the Additional Sharesno proceeding for that purpose will have been initiated or, as the case may be, shall be subject to the accuracy knowledge of the representations Company, threatened by the Commission; and warranties all requests for additional information on the part of the Company herein as of the Applicable Time, the Closing Date and any Option Closing Date, Commission will have been complied with to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and (in each case) to the following additional conditions precedent:your reasonable satisfaction.
(ad) On the Closing Date, you shall have received:
(1) The opinion (including the disclosure letter), dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to Dealer Manager, shall have furnished to you, as Dealer Manager, on the Exchange Date, the opinions of counsel with respect to such matters as you may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(e) (i) Holland & Knight, special counsel to the Company, shall have furnished to you on (A) the Commencement Date, the opinions to the effect set forth in Exhibit A-1 and (B) the Exchange Date, the opinions and negative assurance letter to the effect set forth in Exhibit A-2 and (ii) ▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President, General Counsel and Secretary of the Company and Guarantors, shall have furnished to you on the Exchange Date, the opinions to the effect set forth in Exhibit B.
(f) On the Commencement Date, the Withdrawal Deadline, the Expiration Date and the Exchange Date, Deloitte & Touche LLP, independent public accountants, shall have furnished to you a customary accountants’ letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect that:.
(i) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The Shares have been duly authorized and validly issued and are fully paid and non-assessable.
(iv) The authorized common stock of Neither the Company conforms as to legal matters to the description thereof contained in each nor any of the General Disclosure Package and the Prospectus;
(v) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States and the General Corporation Law of the State of Delaware for the issuance, sale and delivery of the Shares by the Company to the Underwriters its subsidiaries shall have been obtained or made.
(vi) The Company is not, and after giving effect to the offering and sale of the Shares and the application of proceeds therefrom will not be, an “investment company” as such term is defined in the 1940 Act.
(vii) Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they have reviewed the Registration Statement, the General Disclosure Package and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the 1933 Act and the 1933 Act Regulations; between sustained since the date of the Prospectus and such Closing Date latest audited financial statements included in the Offer Material any material loss or Option Closing Dateinterference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the case may be, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certificates and an opinion of certain officers of the CompanyOffer Material, and letters addressed to you from the Company’s independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel’s understanding of the applicable law and the experience such counsel have gained through their practice under the 1933 Act, they will confirm to you that, in such counsel’s opinion, the Registration Statement as the date of the Prospectus, and the Prospectus as of the date of the Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; nothing that came to such counsel’s attention in the course of such review has caused such counsel to believe that (i) the Registration Statement, as of the date of the Prospectus, 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; (ii) since the General Disclosure Package, date as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, which information is given in the light of the circumstances under which they were made, Offer Material there shall not misleading; or (iii) the Prospectus, as of its date, contained have been any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, change in the light of the circumstances under which they were made, not misleading; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of such Closing Date or Optional Closing Date, as the case may be, 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; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package capital stock or the Prospectus except for those made under the captions “Description long-term debt of Capital Stock” in the General Disclosure Package and the Prospectus insofar as they purport to describe the provisions of the documents therein described and those made under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common Stock” in the General Disclosure Package and the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; and, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, General Disclosure Package or the Prospectus.
(2) The opinion, dated as of the Closing Date, of the General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
(iii) The authorized and outstanding preferred stock of the Company conforms as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus
(iv) There are no pending or, to the best of such counsel’s knowledge, threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the General Disclosure Package or the Prospectus that are not disclosed as required.
(v) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(vi) The issue and sale of the Shares does not, and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated, and the performance of the obligations hereunder, will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agencyMaterial Adverse Effect, authority or body or any arbitrator having jurisdiction over development that would reasonably be expected to have a Material Adverse Effect, otherwise than as set forth or contemplated in the Company known to such counsel and applicable to Offer Material, the Companyeffect of which, nor will such action result in any violation such case described in clause (i) or (ii), is in Dealer Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the provisions of New Securities on the charter or by-laws of terms and in the Companymanner contemplated in this agreement and in the Offer Material.
(3h) The opinion On or opinions of your counselafter the Commencement Date, relating to the issuance and sale there shall not have occurred any of the Shares as herein contemplatedfollowing: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or The NASDAQ Global Select Market; (ii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (iv) 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 other matters as you may request event specified in clause (iii) or (iv) in Dealer Manager’s judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the New Securities on the terms and in the Registration Statement, manner contemplated in the General Disclosure Package and the ProspectusOffer Material.
(bi) On As of the Closing Exchange Date, you the Dealer Manager shall have received a copy of each Security Document, executed and delivered by all of the parties thereto in form and substance satisfactory to the Dealer Manager.
(j) As of the Exchange Date, the agreement governing the new secured revolving credit facility shall be in full force and effect, shall conform to the description thereof contained in the Prospectus and shall not have been modified.
(k) As of the Exchange Date, the agreements governing the first lien term loan credit facility and the second lien term loan credit facility shall be in full force and effect, shall conform to the description thereof contained in the Prospectus and shall not have been modified.
(l) The Company shall have furnished or caused to be furnished to Dealer Manager on the Exchange Date a certificate of the Chairman, Vice Chairman, President or a Vice President an authorized executive officer of the Company, dated as of the Closing Date, to the effect stating (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of this Agreement, (ii) that the representations and warranties of the Company contained in Section 1 this agreement (A) that are not qualified by a “materiality” qualification shall be true and correct with the same force and effect in all material respects as though expressly such representations and warranties had been made at on and as of the date Exchange Date; and (B) that are qualified by a “materiality” qualification shall be true and correct in all respects as so qualified as though such representations and warranties had been made on and as of the Exchange Date (except to the extent such representations and warranties are, by their terms, made as of a specific date, in which case such representations and warranties shall be true and correct in the manner set forth in the foregoing clauses (A) or (B), as applicable, as of such certificatedate), (ii) that the Company has duly performed, in all material respects (to the extent not already so qualified), all obligations required to be performed by it as of such date pursuant to the terms hereof, (iii) that the Company no event specified in subsections (f) and (g) of this Section has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate and occurred, (iv) that the Company and the Guarantors are Solvent and (v) such other matters as Dealer Manager may reasonably request; provided that, for the avoidance of doubt, such certifying officers may state that he/she makes no stop order suspending representation regarding any Dealer Manager Information.
(m) On the effectiveness Exchange Date, the Dealer Manager shall have received copies of the Registration Statement has fully executed Supplemental Indenture, the New Indenture, and the Warrant Agreement.
(n) The New Securities shall be eligible for clearance and settlement through DTC.
(o) The Company shall have delivered all information necessary in order to prepare all financing statements, United States Patent and Trademark Office and Copyright Office filings, fixture filings and all other documents or instruments necessary in order to perfect a security interest in the Collateral.
(p) No stop order, restraining order or injunction shall have been issued (and not subsequently stayed or vacated) by, and no proceedings for that purpose proceeding, litigation or investigation shall have been initiated by or threatened by the Commission.
(c) On each of the date hereof and the Closing Datebefore, you shall have received from Ernst & Young LLPany agency, a letter, dated as of the date hereof court or the Closing Date, as the case may be, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants other governmental body with respect to the Company and its subsidiaries within making or the meaning consummation of the 1933 Act and the 1933 Act RegulationsExchange Offer, which you believe makes it inadvisable for you to continue to render services as a Dealer Manager hereunder.
(iiq) In their opinion, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They You shall have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus.
(v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and received such other inquiries and procedures as may be specified in such letter, and on documents that you or your counsel reasonably request dated the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of delivery of such letter, there was any change in certain balance sheet items including the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries Commencement Date or any decreases in consolidated common shareholders’ equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except in each case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such letter; or
(B) for the period from the date of the latest income statement included in the General Disclosure Package and the Prospectus to the date not more than three business days prior to the delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in certain income statement items including consolidated net income or consolidated net interest income, except for decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in such lettersubsequent thereto.
(vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the General Disclosure Package and the Prospectus (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 and its subsidiaries 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. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. The letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(d) On the Closing Date, Shearman & Sterling LLP, counsel for the Underwriters, shall have been furnished with such documents and opinions as it may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, 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 Shares as herein contemplated shall be satisfactory in form and substance to the Underwriters and their counsel.
(e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed on Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(f) In the event that the Underwriters exercise the option provided in Section 2 hereof to purchase all or any portion of the Additional Shares, the obligations of the
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Sources: Dealer Manager Agreement (Washington Consulting, Inc.)