Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative on or prior to such respective dates): (a) The Representative shall have received an opinion and negative assurance letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters dated the Closing Time or the Option Closing Time, as applicable, covering such matters as the Underwriters shall reasonably request, in form and substance to be agreed by the parties. (b) The Company shall have furnished to the Representative certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that: (i) The representations and warranties of the Company in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has complied with all the agreements and satisfied all the conditions on its part that are required to be performed or satisfied by it at or prior to the Closing Time or the Option Closing Time, as applicable; (ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; (iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occur. (c) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representative. (d) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative shall have objected in writing. (e) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule. (g) [Reserved.] (h) The Company shall have applied for listing of the Notes on the NYSE. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. (j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof. (l) Prior to the Closing Time and each Option Closing Time, the Company shall have furnished to the Representative such further information, certificates and documents as the Underwriters may reasonably request. (m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (n) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC. (o) The Company shall have furnished to the Representatives a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Lung, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time Date or on each Option Closing TimeDate, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time Date and each Option Closing TimeDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions at the Closing Time Date or on each Option Closing TimeDate, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Underwriters shall have received an opinion and negative assurance letter of ▇Faegre Drinker B▇▇▇▇▇ & ▇▇R▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters dated the Closing Time Date or the Option Closing TimeDate, as applicable, covering such matters as the Underwriters shall reasonably request, in each case in the form and substance satisfactory to be agreed by the partiesUnderwriters.
(b) The Underwriters shall have received an opinion and negative assurance letter of M▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as applicable, covering such matters as the Underwriters shall reasonably request, in each case in the form and substance satisfactory to the Underwriters.
(c) The Company shall have furnished to the Representative Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, all dated the Closing Time Date or the Option Closing TimeDate, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct with the same effect as if made at the Closing Time Date or the Option Closing TimeDate, as applicable, and the Company has complied with all the agreements and satisfied all the conditions on its part that are required to be performed or satisfied by it at or prior to the Closing Time Date or the Option Closing TimeDate, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time Date or the Option Closing TimeDate, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus, there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occurEffect.
(cd) The Company shall have requested received from the Chief Executive Officers and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit to have furnished to the UnderwritersChief Financial Officer, at the Execution Initial Sale Time, at the Closing Time Date and at each Option Closing Date, a certificate confirming certain matters, including but are not limited to, the accuracy and validity of certain financial information disclosed in the Company’s filings with the SEC, in form and substance heretofore approved by the Representative (the “CFO Certificate”).
(e) The Company shall have received from Deloitte & Touche LLP, at the Initial Sale Time, lettersat the Closing Date and at each Option Closing Date, an accountant’s “comfort letter” to the Underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), dated respectively as of the Execution Initial Sale Time, the Closing Time Date and each Option Closing TimeDate, in form and substance heretofore approved by the Representative.
(df) The Company shall have received from Mazars USA LLP, at the Initial Sale Time, at the Closing Date and at each Option Closing Date, an accountant’s “comfort letter” to the underwriters delivered according to applicable U.S. or non-U.S. audit standards, dated respectively as of the Initial Sale Time, the Closing Date and each Option Closing Date, in form and substance heretofore approved by the Representative.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eh) Prior to the Closing Time Date and each Option Closing TimeDate: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or or, to the Company’s knowledge, threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time Date shall have been made within the applicable time period prescribed for such filing by such Rule.
(g) [Reserved.]
(hj) The Company Notes to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall have applied been approved for listing on Nasdaq, subject to notice of the Notes on the NYSEissuance.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jk) Subsequent to the Execution Initial Sale Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ec) of this Section 5 delivered at the Closing Time Date or the Option Closing TimeDate, as applicable, from the letter delivered at the Execution Initial Sale Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(l) Prior to the Closing Time Date and each Option Closing TimeDate, the Company shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(m) Subsequent to the Execution Initial Sale Time, if there are any debt securities of the Company, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time Date and each Option Closing Time Date the Notes shall be cleared and settled through DTC.
(o) The Company shall have furnished executed and delivered the Sale and Purchase Agreement, dated September 22, 2021, relating to the Representatives a certificate, signed by the principal financial or accounting officer acquisition and purchase of all of the Company, dated issued and outstanding equity interests of 123tv Invest GmbH and 123tv Holding GmbH and the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. related Vendor Loan Agreement. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time Date and each Option Closing TimeDate, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time Date or the Option Closing TimeDate, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇M▇▇▇▇▇, ▇▇▇▇▇ & Bockius B▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇A▇▇▇▇▇ Lung, at the Closing Time Date and each Option Closing TimeDate.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of ▇▇▇▇▇▇▇▇ & Chance US LLP and ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, covering such matters as and addressed to the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance as set forth in Exhibit B hereto and to be agreed by such further effect as the partiesRepresentative may reasonably request.
(b) The Company Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(c) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Representative Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all all, dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occuror Manager Material Adverse Effect, as applicable.
(cd) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representative.
(de) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(ef) Prior to the Closing Time and each Option Closing Time: Time (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Registration Statement, Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(gh) [Reserved.]
(hi) The Company shall have applied for listing of the Notes on the NYSE.
(ij) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ed) of this Section 5 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(kl) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(lm) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(mn) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(no) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(op) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. C. If any of the conditions specified in this Section 5 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇ & ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ Lung▇. ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Sources: Underwriting Agreement (Sutherland Asset Management Corp)
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, Offered Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Trust Depositor and Harley-Davidson contained herein as of at the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, ) and the Closing Time and each Option Closing TimeDate, to the accuracy of the statements of the Company Trust Depositor and Harley-Davidson made in any certificates pursuant to the provisions hereof, to the performance by the Company Trust Depositor and Harley-Davidson of its their respective obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative on or prior to such respective dates):conditions:
(a) The Representative If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriters agree in writing to a later time, the Registration Statement shall have received an opinion become effective not later than (i) 6:00 P.M. New York City time on the date of determination of the public offering price, if such determination occurs at or prior to 3:00 P.M. New York City time on such date or (ii) 12:00 noon New York City time on the business day following the day on which the public offering price was determined, if such determination occurs after 3:00 P.M. New York City time on such date.
(b) Each of the Preliminary Prospectus, the Prospectus and negative assurance letter any supplements thereto shall have been filed with the Commission in the manner and within the applicable time period required under Rule 424(b) under the Act (without reference to Rule 424(b)(8)) in accordance with the Rules and Regulations and Section 6(a) hereof, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Trust Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law; and any requests for additional information from the Commission with respect to the Registration Statement shall have been complied with.
(c) The Trust Depositor shall have furnished to the Underwriters the opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the CompanyTrust Depositor, addressed and with respect to the Underwriters Nevada opinions, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, special Nevada counsel, each dated the Closing Time or the Option Closing Time, as applicable, covering such matters as the Underwriters shall reasonably request, Date and satisfactory in form and substance to be agreed by the parties.
(b) The Company shall have furnished to the Representative certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, all dated the Closing Time or the Option Closing Time, as applicableUnderwriters, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations the Trust Depositor has been duly incorporated and warranties is validly existing as a corporation in good standing under the laws of the Company State of Nevada, with full corporate power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of the State of Illinois;
(ii) each of the Transfer and Sale Agreement, the Sale and Servicing Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Trust Depositor, and constitutes a legal, valid and binding obligation of the Trust Depositor enforceable against the Trust Depositor in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect);
(iii) this Agreement are true has been duly authorized, executed and correct delivered by the Trust Depositor;
(iv) the direction by the Trust Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Trust Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the same effect as if made at Indenture and delivered and paid for pursuant to this Agreement, the Closing Time or Notes will constitute legal, valid and binding obligations of the Option Closing TimeTrust (subject, as applicableto enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditor’s rights generally from time to time in effect) and will be entitled to the benefits of the Indenture;
(v) no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated herein or in the Transfer and Sale Agreement, the Sale and Servicing Agreement, and the Indenture (collectively, the “Basic Documents”), except such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Offered Securities by the Underwriters, the filing of the UCC-1 financing statements relating to the conveyance of the Contracts by Harley-Davidson to the Trust Depositor and of the Contracts and the other Trust Property by the Trust Depositor to the Trust and by the Trust to the Indenture Trustee on behalf of the Noteholders, and such other approvals (which shall be specified in such opinion) as have been obtained and filings as have been made or are in the process of being made;
(vi) none of the sale of the Contracts by Harley-Davidson to the Trust Depositor pursuant to the Transfer and Sale Agreement, the sale of the Trust Property to the Trust pursuant to the Sale and Servicing Agreement, the pledge of the Trust Property to the Indenture Trustee, the issue and sale of the Notes, the execution and delivery of this Agreement, the Sale and Servicing Agreement, the Transfer and Sale Agreement, the Trust Agreement or the Indenture, the consummation of any other of the transactions herein or therein contemplated or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or constitute a default under, any law binding on the Trust Depositor or the charter or bylaws of the Trust Depositor or the terms of any indenture or other agreement or instrument known to such counsel and to which the Trust Depositor is a party or by which it is bound, or any judgment, order or decree known to such counsel to be applicable to the Trust Depositor of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Trust Depositor;
(vii) there are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (A) asserting the invalidity of any of the Basic Documents, (B) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof or (C) that might materially and adversely affect the performance by the Trust Depositor of its obligations under, or the validity or enforceability of, this Agreement or any Basic Document;
(viii) to the best knowledge of such counsel and except as set forth in the Preliminary Prospectus and the Prospectus, no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to which the Trust Depositor is a party or by which it is bound, which default is or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Trust Depositor, taken as a whole;
(ix) the provisions of the Transfer and Sale Agreement are effective to transfer to the Trust Depositor all right, title and interest of Harley-Davidson in and to the Contracts, and to the knowledge of such counsel, the other Trust Property will be owned by the Trust Depositor free and clear of any Lien except for the Lien of the Sale and Servicing Agreement and the Indenture;
(x) the provisions of the Sale and Servicing Agreement are effective to transfer to the Trust all right, title and interest of the Trust Depositor in and to the Collateral and the Contracts and to the knowledge of such counsel, the other Collateral, will be owned by the Trust free and clear of any Lien except for the Lien of the Indenture;
(xi) the provisions of the Indenture are effective to create, in favor of the Indenture Trustee for the benefit of the Noteholders as security for the Trust’s obligations under the Notes, a valid security interest in the Contracts and that portion of the other Collateral which is subject to Article 9 of the Illinois Uniform Commercial Code (the “UCC Collateral”) and the proceeds thereof;
(xii) the form UCC-1 financing statements naming (A) Harley-Davidson as seller and the Trust Depositor as purchaser, (B) the Trust Depositor as seller and the Trust as purchaser and (C) the Trust, as debtor, and the Indenture Trustee, as secured party are in appropriate form for filing with the Secretary of State of the State of Nevada; the interest of the Indenture Trustee in the Contracts and the proceeds thereof and, to the extent that the filing of a financing statement is effective to perfect an interest in the other Trust Property under Article 9 of the Nevada Uniform Commercial Code, the other Trust Property will be perfected upon the filing of such financing statements in such filing offices; and no other interest of any other purchaser from or creditor of Harley-Davidson, the Trust Depositor or the Trust is equal or prior to the interest of the Trustee in the Contracts and such other Trust Property;
(xiii) the Contracts are “tangible chattel paper” under Article 9 of the Illinois Uniform Commercial Code and the Nevada Uniform Commercial Code;
(xiv) the Basic Documents conform in all material respects with the descriptions thereof contained in the Preliminary Prospectus and the Prospectus;
(xv) the statements in the Preliminary Prospectus and the Prospectus under the headings “Risk Factors” and “Legal Aspects of the Contracts”, to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(xvi) the statements contained in the Preliminary Prospectus and the Prospectus under the headings “Description of the Notes” and “Certain Information Regarding the Securities”, insofar as such statements constitute a summary of the Offered Securities and the Basic Documents, constitute a fair summary of such documents;
(xvii) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended;
(xviii) the Indenture, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized and, when duly executed and delivered by the Owner Trustee, will constitute the legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, except (A) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(xix) the Trust Depositor is not, nor will the Trust Depositor become as a result of the offer and sale of the Offered Securities as contemplated in the Preliminary Prospectus, the Prospectus and the Basic Documents, an “investment company” as defined in the Investment Company Act or a company “controlled by” an “investment company” within the meaning of the Investment Company Act;
(xx) to the best knowledge of such counsel, the Trust Depositor has complied obtained all material licenses, permits and other governmental authorizations that are necessary to the conduct of its business; such licenses, permits and other governmental authorizations are in full force and effect, and the Trust Depositor is in all material respects complying therewith; and the Trust Depositor is otherwise in compliance with all laws, rules, regulations and statutes of any jurisdiction to which it is subject, except where non-compliance would not have a material adverse effect on the agreements Trust Depositor;
(xxi) all actions required to be taken, and satisfied all filings required to be made, by the conditions on its part Trust Depositor or Harley-Davidson under the Act and the Exchange Act prior to the sale of the Offered Securities have been duly taken or made;
(xxii) to the best of such counsel’s knowledge and information, there are no legal or governmental proceedings pending or threatened that are required to be performed or satisfied by it at or prior to disclosed in the Closing Time or the Option Closing TimeRegistration Statement, as applicableother than those disclosed therein;
(iixxiii) No 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, the descriptions thereof or references thereto are correct, and no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument so described, referred to, filed or incorporated by reference;
(xxiv) the Registration Statement has become effective under the Act, any required filings of the Preliminary Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) under the Act have been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)), and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued, and no proceedings for that purpose have been instituted or are pending or threatened contemplated under the Securities Act;, and the Registration Statement, Preliminary Prospectus and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act, the Exchange Act, the Trust Indenture Act and the Rules and Regulations; and
(iiixxv) They have such counsel has examined the Registration Statement, the Disclosure Package Time of Sale Information and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, and nothing has come to such counsel’s attention that would lead such counsel to believe that (a) the Registration Statement Statement, at the time it initially became effective, at the time Post-Effective Amendment No. 2 thereto became effective and at each deemed effective date with respect to the ProspectusUnderwriters pursuant to Rule 430B(f)(2) under the Act, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain contained any untrue statement of a material fact and did not and do not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
, (ivb) Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Preliminary Prospectus, there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occur.
(c) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit to have furnished to the Underwriters, at the Execution TimeTime of Sale, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representative.
(d) No amendment or supplement to the Registration Statement, the Prospectus or contained any document in the Disclosure Package shall have been filed to which the Representative shall have objected in writing.
(e) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
misleading or (fc) All filings with the Commission required by Rule 424 under Prospectus, at the Securities Act to have been filed by date thereof and at the Closing Time shall have been made within Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the applicable time period prescribed for such filing by such Rule.
(g) [Reserved.]
(h) The Company shall have applied for listing statements therein, in the light of the Notes on the NYSE.
circumstances under which they were made, not misleading (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness in each of the underwriting terms and arrangements.
clauses (j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement theretoa), (b) and (c), except for the Prospectus financial statements and related schedules or other financial or statistical data included or incorporated by reference therein and that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (exclusive Form T-1) of the Indenture Trustee under the Trust Indenture Act, as to which such counsel will not be called upon to express a belief). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any supplement thereto)jurisdiction other than the State of Illinois, there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) State of this Section 5 delivered at New York, the Closing Time State of Delaware or the Option Closing TimeUnited States, as applicableto the extent such counsel deems proper and specifies in such opinion, from upon the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results opinion of operations or prospects other counsel of the Company good standing whom such counsel believes to be reliable and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance who are satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(lB) Prior as to matters of fact, to the Closing Time and each Option Closing Timeextent such counsel deems proper, the Company shall have furnished to the Representative such further information, certificates and documents as the Underwriters may reasonably request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(o) The Company shall have furnished to the Representatives a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Lung, at the Closing Time and each Option Closing Time.certificat
Appears in 1 contract
Sources: Underwriting Agreement (Harley Davidson Customer Funding Corp)
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of ▇▇▇▇▇▇ & Sidley Austin LLP and V▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, covering such matters as and addressed to the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance to be agreed by the partiesas set forth in Exhibit B hereto.
(b) The Company shall have requested and caused C▇▇▇▇▇▇▇ Chance LLP, tax counsel for the Company, to have furnished to the Representative Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of A▇▇▇▇▇ & Bird LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occuror Manager Material Adverse Effect, as applicable.
(ce) The Company shall have requested and caused PricewaterhouseCoopers S.A. Deloitte & Touche LLP and PricewaterhouseCoopers Audit C▇▇▇▇ LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativeRepresentatives.
(df) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(gi) [Reserved.]
(hj) The Company shall have applied for listing of the Notes on the NYSE.
(ik) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(km) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof[Reserved.]
(ln) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(mo) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(np) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(oq) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. D. If any of the conditions specified in this Section 5 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative Representatives (unless any such conditions have been waived in writing by the Representative Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 6 shall be delivered at the office of ▇▇▇▇▇▇, A▇▇▇▇▇ & Bockius Bird LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇9▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: M▇▇▇▇▇▇ Lung▇▇▇▇▇▇▇, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Depositor and ▇▇▇▇▇ Fargo Bank contained herein as of the date of the applicable Terms Agreement and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, as of the Closing Time and each Option Closing TimeDate, to the accuracy of the statements of the Company Depositor and ▇▇▇▇▇ Fargo Bank made in any certificates officer’s certificate pursuant to the provisions hereof, to the performance in all material respects by the Company Depositor of its obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative on or prior to such respective dates):conditions:
(a) The Representative No stop order suspending the effectiveness of the Registration Statement with respect to the Notes shall have received an opinion been issued and negative assurance letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPno proceedings for that purpose shall have been instituted and be pending or shall have been threatened, counsel and the Prospectus shall have been filed or mailed for filing with the Company, addressed Commission not later than required pursuant to the Underwriters dated rules and regulations of the Closing Time or the Option Closing Time, as applicable, covering such matters as the Underwriters shall reasonably request, in form and substance to be agreed by the partiesCommission.
(b) The Company Depositor shall have furnished to the Representative certificatesUnderwriters a certificate, dated the Closing Date, of the Depositor, signed by the Chief Executive Officer and the principal financial a vice president or accounting officer an assistant vice president of the Company, all dated the Closing Time or the Option Closing Time, as applicableDepositor, to the effect that the signers signer of such certificates have certificate has carefully examined the Disclosure PackageRegistration Statement, Prospectus, any supplements or amendments to the Registration Statement Prospectus and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement Depositor herein are true and correct in all material respects on and as of the Closing Date with the same effect as if made at on the Closing Time or the Option Closing Time, as applicableDate, and the Company Depositor has complied with all the agreements and satisfied all the conditions on its part that are required to be performed or satisfied by it at on or prior to the Closing Time or the Option Closing Time, as applicableDate;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto with respect to the Notes has been issued, and no proceedings for that purpose have been instituted or and are pending or, to his or her knowledge, have been threatened under as of the Securities Act;Closing Date; and
(iii) They have examined Nothing has come to the Registration Statement, the Disclosure Package and attention of such person that would lead him or her to believe that the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain contains any untrue statement of a material fact and did not and do not omit or omits to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occur.
(c) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representative.
(d) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative shall have objected in writing.
(e) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fc) All filings The Depositor shall have caused ▇▇▇▇▇ Fargo Bank to furnish to the Underwriters a certificate, dated the Closing Date, of ▇▇▇▇▇ Fargo Bank, signed by a vice president or an assistant vice president of ▇▇▇▇▇ Fargo Bank, to the effect that the representations and warranties of ▇▇▇▇▇ Fargo Bank herein are true and correct in all material respects on and as of the Closing Date with the Commission required by Rule 424 under the Securities Act to have been filed by same effect as if made on the Closing Time shall have been made within Date, and ▇▇▇▇▇ Fargo Bank has in all material respects complied with all agreements and satisfied all the applicable time period prescribed for such filing by such Ruleconditions on its part to be performed or satisfied at or prior to the Closing Date.
(g) [Reserved.]
(hd) The Company shall have applied for listing of the Notes on the NYSE.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(l) Prior to the Closing Time and each Option Closing Time, the Company Depositor shall have furnished to the Representative such further information, certificates and documents as the Underwriters may reasonably request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(o) The Company shall have furnished to the Representatives a certificate, signed by the principal financial or accounting officer of the Companyan opinion, dated the Closing Time or the Option Closing TimeDate, as applicable, in the form and substance as set forth in Exhibit B. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇LLP, ▇▇ ▇▇▇▇▇counsel to the Depositor, Attention: ▇or other counsel satisfactory to the Underwriters, to the effect that:
(i) The Depositor is a limited liability company, validly existing and in good standing under the laws of the State of Delaware, with corporate power to enter into and perform its obligations under this Agreement, the applicable Terms Agreement and the Basic Documents to which it is a party;
(ii) The execution and delivery of this Agreement and the applicable Terms Agreement have been duly authorized by the Depositor and this Agreement and the applicable Terms Agreement have been duly executed and delivered by the Depositor;
(iii) The execution and delivery of the Basic Documents to which the Depositor is a party have been duly authorized by the Depositor, and such Basic Documents have been duly executed and delivered by the Depositor and each constitutes a legal, valid and binding agreement of the Depositor, enforceable against the Depositor in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to or affecting creditors’ rights generally or the rights of creditors of banks, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the enforcement of rights with respect to indemnification and contribution obligations and provisions (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy;
(iv) Assuming that the Notes have been duly executed, authenticated and delivered in the manner contemplated in the Indenture and paid for by the Underwriters pursuant to this Agreement and the applicable Terms Agreement, the Notes will be validly issued and outstanding and entitled to the benefits provided by the Indenture;
(v) The issuance and sale by the Depositor of the Notes to the Underwriters pursuant to this Agreement and the applicable Terms Agreement, the compliance by the Depositor with the provisions of this Agreement, the applicable Terms Agreement and the Basic Documents to which it is a party, and the consummation by the Depositor of the transactions therein contemplated (a) do not require the consent, approval, authorization, order, or qualification of or registration with any New York State or federal governmental authority or, to the knowledge of such counsel, any New York State or federal court, except such as may be required under state securities or blue sky laws, recordations of the assignment of the Student Loans to the Indenture Trustee pursuant to the Indenture that have not yet been completed, and such other approvals as have been obtained or effected, (b) do not conflict with or result in a violation of any provision of the certificate of incorporation and bylaws of the Depositor or any New York State or federal law, and (c) to the knowledge of such counsel, do not conflict with or result in a breach or violation of any material indenture, agreement or instrument to which the Depositor is a party or by which it or any of its property is bound, or any judgment, decree or order applicable to the Depositor, of any New York State or federal court, regulatory body, administrative agency or other governmental authority;
(vi) To the knowledge of such counsel, there is no legal or governmental action, investigation or proceeding pending or threatened against the Depositor (a) asserting the invalidity of this Agreement, the applicable Terms Agreement, the Basic Documents to which it is a party or the Notes, (b) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement and the applicable Terms Agreement, (c) which would materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability (with respect to the Depositor) of, this Agreement, the applicable Terms Agreement, the Basic Documents to which it is a party or the Notes or (d) seeking to affect adversely the federal income tax attributes of the Notes as described in the Base Prospectus and the Prospectus Supplement under the heading “U.S. Federal Income Tax Consequences.” For purposes of the opinion set forth in this paragraph, such counsel has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to the Depositor a present intention to initiate such proceedings;
(vii) The Trust Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended;
(viii) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, with respect to the Notes;
(ix) The Issuer is not an “investment company” or under the “control” of an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended;
(x) The Registration Statement has been declared effective under the Act, and, to the knowledge of such counsel, no stop order with respect thereto has been issued by the Commission;
(xi) The Registration Statement, as of its effective date, and the Base Prospectus and the Prospectus Supplement, as of the dates thereof (in each case, with the exception of other than (i) the financial statements, other financial or accounting information or other statistical or numerical information, tabular or otherwise, contained in or incorporated by reference into the Registration Statement or the Prospectus, (ii) any other documents or information incorporated by reference into the Registration Statement or the Prospectus or (iii) any exhibits to the Registration Statement, as to which such counsel expresses no view), appeared on their respective faces to be appropriately responsive in all material respects to the requirements of the Act and the rules and regulations thereunder applicable to such documents as of the relevant date; and
(xii) The statements in the Prospectus Supplement under the headings “U.S. Federal Income Tax Consequences” and “ERISA Considerations,” insofar as such statements purport to summarize matters of federal law or legal conclusions with respect thereto have been reviewed by such counsel and are correct in all material respects. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on Notes or other documents furnished by officers of, the parties to this Agreement and the Basic Documents. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Depositor. Such opinion may be qualified as an opinion only on the laws of the State of New York, the laws of each state in which the writer of the opinion is admitted to practice law and the federal law of the United States. To the extent that such firm relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such firm that is delivered to the Underwriters.
(e) ▇▇▇▇▇ LungFargo Bank shall have furnished to the Underwriters an opinion, at dated the Closing Time Date, of counsel to ▇▇▇▇▇ Fargo Bank, to the effect that:
(i) ▇▇▇▇▇ Fargo Bank has been duly incorporated and is validly existing as a national banking association and has the power and authority to enter into, and to take all action required of it under the Basic Documents to which it is a party;
(ii) The Basic Documents to which ▇▇▇▇▇ Fargo Bank is a party have been duly authorized, executed and delivered by ▇▇▇▇▇ Fargo Bank and, assuming valid execution and delivery thereof by the other parties thereto, such Basic Documents constitute valid and legally binding agreements of ▇▇▇▇▇ Fargo Bank, enforceable against ▇▇▇▇▇ Fargo Bank in accordance with their terms, subject to bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors’ rights generally and to general equity principles regardless of whether such enforcement is considered in a proceeding at law or in equity;
(iii) No consent, approval, authorization or order of any federal court or governmental agency or body is required for the consummation by ▇▇▇▇▇ Fargo Bank of the transactions contemplated by the terms of the Basic Documents to which it is a party except any such as may be required under the blue sky laws of any jurisdiction in connection with the offering, sale or acquisition of the Notes, any recordations of the assignments of the Student Loans evidenced by the Notes pursuant to the Indenture that have not yet been completed and any approvals as have been obtained;
(iv) The consummation by ▇▇▇▇▇ Fargo Bank of the transactions contemplated by the terms of the Basic Documents do not, to the knowledge of such counsel, conflict with or result in a breach or violation of any material term or provision of, or constitute a default under, the charter or bylaws of ▇▇▇▇▇ Fargo Bank, any indenture or other agreement or instrument to which the Indenture Trustee is a party or by which it is bound, any federal statute or regulation applicable to ▇▇▇▇▇ Fargo Bank or, to the knowledge of such counsel, any order of any federal court, regulatory body, administrative agency or governmental body having jurisdiction over ▇▇▇▇▇ Fargo Bank; and
(v) To the best knowledge of such counsel after due inquiry, there are no legal or governmental actions, investigations or proceedings pending to which ▇▇▇▇▇ Fargo Bank is a party, or threatened against ▇▇▇▇▇ Fargo Bank, (A) asserting the invalidity of the Basic Documents or (B) which might materially and adversely affect the performance by ▇▇▇▇▇ Fargo Bank of its obligations under, or the validity or enforceability of, the Basic Documents. For purposes of the foregoing, such counsel may state that it has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to a member of the law division of ▇▇▇▇▇ Fargo & Company having responsibility for litigation matters involving the activities of ▇▇▇▇▇ Fargo Bank a present intention to initiate such proceedings. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to the Basic Documents. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Indenture Trustee. Such opinion may be qualified as an opinion only on the federal law of the United States and, with respect to the opinions set forth in paragraph (e)(ii) above, the laws of the State of New York. To the extent that such counsel relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such counsel that is delivered to the Underwriters.
(f) For each Option series of Notes for which there is an eligible lender trustee, the Eligible Lender Trustee shall have furnished to the Underwriters an opinion, dated the Closing TimeDate, of counsel to the Eligible Lender Trustee, in form and substance satisfactory to the Underwriters; provided, that such opinion shall state that the Eligible Lender Trustee is an “eligible lender” for purposes of the FFELP Program in its capacity as eligible lender trustee with respect to the Student Loans.
(g) The Owner Trustee shall have furnished to the Underwriters an opinion, dated the Closing Date, of counsel to the Owner Trustee, in form and substance satisfactory to the Underwriters.
(h) The Indenture Trustee shall have furnished to the Underwriters an opinion, dated the Closing Date, of counsel to the Indenture Trustee, in form and substance satisfactory to the Underwriters.
(i) For each series of Notes for which there is a Derivative Contract Counterparty, the Derivative Contract Counterparty shall have furnished to the Underwriters an opinion, dated the Closing Date, of counsel to the Derivative Contract Counterparty, in form and substance satisfactory to the Underwriters.
(j) The Underwriters shall have received from counsel for the Underwriters such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Notes, the Registration Statement and the Prospectus, and such other related matters as the Underwriters may reasonably require.
(k) The Depositor shall have delivered to the Underwriters (i) a letter from the Depositor’s independent accountants, as identified in the applicable Terms Agreement (the “Independent Accountants”), dated as of or prior to the date of first use of the Prospectus Supplement in the form and reflecting the performance of the procedures previously agreed to by the Depositor and the Representative with respect to numerical and statistical information included in the Prospectus Supplement (other than static pool information, if any, provided pursuant to Item 1105 of Regulation AB under t
Appears in 1 contract
Sources: Underwriting Agreement (Wells Fargo Student Loans Receivables I LLC)
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes Shares at the Closing Time Date or on each Option Closing TimeDate, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Applicable Time, the Closing Time Date and each Option Closing TimeDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions at the Closing Time Date or on each Option Closing TimeDate, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Underwriters shall have received an opinion and negative assurance letter of Pillsbury ▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters dated the Closing Time Date or the Option Closing TimeDate, as applicable, covering such matters as the Underwriters shall reasonably request, in each case in the form and substance satisfactory to be agreed by the partiesUnderwriters.
(b) The Company shall have each furnished to the Representative Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, all dated the Closing Time Date or the Option Closing TimeDate, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct with the same effect as if made at the Closing Time Date or the Option Closing TimeDate, as applicable, and the Company has complied with all the agreements and satisfied all the conditions on its part that are required to be performed or satisfied by it at or prior to the Closing Time Date or the Option Closing TimeDate, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time Date or the Option Closing TimeDate, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus, there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occurEffect.
(c) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit ▇▇▇▇▇▇▇▇ LLP to have furnished to the Underwriters, at the Execution Applicable Time, at the Closing Time Date and at each Option Closing TimeDate, an accountant’s “comfort letters” to the underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), dated respectively as of the Execution Applicable Time, the Closing Time Date and each Option Closing TimeDate, in form and substance heretofore approved by the Representative.
(d) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(e) Prior to the Closing Time Date and each Option Closing TimeDate: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or or, to the Company’s knowledge, threatened, by the Commission, and no suspension of the qualification of the Notes Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time Date shall have been made within the applicable time period prescribed for such filing by such Rule.
(g) [ReservedThe “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Underwriter and certain stockholders, officers and directors of the Company relating to sales and certain other disposition of shares of Stock or certain other securities, shall be delivered to the Underwriter on or before the date hereof and shall be in full force and effect on the Closing Date or the Option Closing Date, as the case may be.]
(h) The Company Shares to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall have applied been approved for listing of the Notes on the NYSEExchange, subject to notice of issuance.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(j) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 delivered at the Closing Time Date or the Option Closing TimeDate, as applicable, from the letter delivered at the Execution Applicable Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(lj) Prior to the Closing Time Date and each Option Closing TimeDate, the Company shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(mk) Subsequent to the Execution Applicable Time, if there are any debt securities of the Company, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(nl) The Notes Shares shall be eligible for clearance and settlement through DTC and at the Closing Time Date and each Option Closing Time Date the Notes Shares shall be cleared and settled through DTC.
(o) The Company shall have furnished to the Representatives a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. . If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time Date and each Option Closing TimeDate, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time Date or the Option Closing TimeDate, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Lung, at the Closing Time Date and each Option Closing TimeDate.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of C▇▇▇▇▇▇▇ & Chance US LLP and V▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, covering such matters as and addressed to the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance to be agreed by the partiesas set forth in Exhibit B hereto.
(b) The Company shall have requested and caused C▇▇▇▇▇▇▇ Chance US LLP, tax counsel for the Company, to have furnished to the Representative Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of M▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or development event involving a prospective material adverse change, in the business, management, properties, assets, rights, operations, condition (financial or otherwise) ), results of operations, business, or prospects properties of the Company and the or its Subsidiaries taken as a whole, whether or not arising except as set forth in the ordinary course Disclosure Package or as described in such certificate, or in the ability of business, that would cause a Material Adverse Effect the Manager to occurperform its obligations under the Management Agreement.
(ce) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativeRepresentatives.
(df) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(g) [Reserved.]
(hi) The Company shall have applied for listing of the Notes on the NYSE.
(ij) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(l) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(o) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. D. If any of the conditions specified in this Section 5 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative Representatives (unless any such conditions have been waived in writing by the Representative Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Lung, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes Offered Securities at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of C▇▇▇▇▇▇▇ & Chance US LLP and V▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, covering such matters as and addressed to the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance to be agreed by the partiesas set forth in Exhibit B hereto.
(b) The Company shall have requested and caused C▇▇▇▇▇▇▇ Chance US LLP, tax counsel for the Company, to have furnished to the Representative Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of A▇▇▇▇▇ & Bird LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or development event involving a prospective material adverse change, in the business, management, properties, assets, rights, operations, condition (financial or otherwise) ), results of operations, business, or prospects properties of the Company and the or its Subsidiaries taken as a whole, whether or not arising except as set forth in the ordinary course Disclosure Package or as described in such certificate, or in the ability of business, that would cause a Material Adverse Effect the Manager to occurperform its obligations under the Management Agreement.
(ce) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativeRepresentatives.
(df) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes Offered Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(g) [Reserved.]
(hi) The Company shall have applied for listing of the Notes Offered Securities on the NYSE.
(ij) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes Offered Securities as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(l) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The Notes Offered Securities shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes Offered Securities shall be cleared and settled through DTC.
(o) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. D. If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative Representatives (unless any such conditions have been waived in writing by the Representative Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Lung, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of Sidley Austin LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, covering such matters as and addressed to the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance to be agreed by the partiesas set forth in Exhibit B hereto.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ Chance LLP, tax counsel for the Company, to have furnished to the Representative Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of ▇▇▇▇▇▇ & Bird LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occuror Manager Material Adverse Effect, as applicable.
(ce) The Company shall have requested and caused PricewaterhouseCoopers S.A. Deloitte & Touche LLP and PricewaterhouseCoopers Audit ▇▇▇▇▇ LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativeRepresentatives.
(df) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(gi) [Reserved.]
(hj) The Company shall have applied for listing of the Notes on the NYSE.
(ik) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(km) The Company and the Trustee shall have executed and delivered the Fourth Supplemental Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(ln) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(mo) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(np) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(oq) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. D. If any of the conditions specified in this Section 5 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative Representatives (unless any such conditions have been waived in writing by the Representative Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius Bird LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ Lung▇▇▇▇▇▇▇, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option the Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of ▇A▇▇▇▇▇ & Bird LLP and V▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time their respective opinions, dated the Closing Time or and addressed to the Option Closing Time, as applicable, covering such matters as the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance to be agreed by the partiesas set forth in Exhibit B hereto.
(b) The Company shall have requested and caused A▇▇▇▇▇ & Bird LLP, tax counsel for the Company, to have furnished to the Representative Underwriters at the Closing Time its opinions on certain tax and Investment Company Act matters, dated the Closing Time and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time the favorable opinion of Ropes & G▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or development event involving a prospective material adverse change, in the business, management, properties, assets, rights, operations, condition (financial or otherwise) ), results of operations, business, or prospects properties of the Company and the or its Subsidiaries taken as a whole, whether or not arising except as set forth in the ordinary course Disclosure Package or as described in such certificate, or in the ability of business, that would cause a Material Adverse Effect the Manager to occurperform its obligations under the Management Agreement.
(ce) The Company shall have requested and caused PricewaterhouseCoopers S.A. Deloitte & Touche LLP, RSM US LLP and PricewaterhouseCoopers Audit KPMG LLP to have furnished to the Underwriters, at the Execution Time, Time and at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option the Closing Time, in form and substance heretofore approved by the Representative.
(df) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(g) [Reserved.]
(h) The Company shall have applied for listing of the Notes on the NYSE.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(l) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(ml) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(nm) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(on) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. D. If any of the conditions specified in this Section 5 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Lung, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of ▇▇▇▇▇▇▇▇ & Chance US LLP and ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, covering such matters as and addressed to the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance as set forth in Exhibit C hereto and to be agreed by such further effect as the partiesRepresentatives may reasonably request.
(b) The Company Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(c) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Representative Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all all, dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occuror Manager Material Adverse Effect, as applicable.
(cd) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativeRepresentatives.
(de) The Representatives shall have received lock-up agreements, signed by the persons listed on Schedule IV hereto, in the form of Exhibit B attached hereto, and such letter agreements shall be in full force and effect.
(f) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eg) Prior to the Closing Time and each Option Closing Time: Time (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Registration Statement, Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(gi) [ReservedThe Conversion Shares shall have been approved for listing on the NYSE.]
(hj) The Company shall have applied for listing of the Notes on the NYSE.
(ik) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ed) of this Section 5 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes Securities as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(km) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(ln) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(mo) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(np) The Notes Securities shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes Securities shall be cleared and settled through DTC.
(oq) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. D. If any of the conditions specified in this Section 5 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, by the Representative Representatives (unless any such conditions have been waived in writing by the Representative Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇ & ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ Lung▇. ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Sources: Underwriting Agreement (Sutherland Asset Management Corp)
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of its their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Company shall have received an opinion requested and negative assurance letter caused each of ▇▇▇▇▇▇ & Bird LLP and ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, covering such matters as and addressed to the Underwriters shall reasonably requestUnderwriters, in each case in the form and substance to be agreed by the partiesas set forth in Exhibit B hereto.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ & Bird LLP, tax counsel for the Company, to have furnished to the Representative Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part that are respectively required to be performed or satisfied by it them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the ProspectusProspectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or development event involving a prospective material adverse change, in the business, management, properties, assets, rights, operations, condition (financial or otherwise) ), results of operations, business, or prospects properties of the Company and the or its Subsidiaries taken as a whole, whether or not arising except as set forth in the ordinary course Disclosure Package or as described in such certificate, or in the ability of business, that would cause a Material Adverse Effect the Manager to occurperform its obligations under the Management Agreement.
(ce) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativeRepresentatives.
(df) The Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇ LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(eh) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(g) [Reserved.]
(hj) The Company shall have applied for listing of the Notes on the NYSE.
(ik) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(jl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 5 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a wholewhole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, makes make it impractical impracticable or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(lm) Prior to the Closing Time and each Option Closing Time, the Company Company, the Operating Partnership and the Manager shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(mn) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(no) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(op) The Company shall have furnished to the Representatives Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. D. If any of the conditions specified in this Section 5 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable, applicable by the Representative Representatives (unless any such conditions have been waived in writing by the Representative Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Lung, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes Shares at the Closing Time Date or on each Option Closing TimeDate, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Applicable Time, the Closing Time Date and each Option Closing TimeDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions at the Closing Time Date or on each Option Closing TimeDate, as applicable (except to the extent that any such conditions may have been waived in writing by the Representative Underwriters on or prior to such respective dates):
(a) The Representative Underwriters shall have received an opinion and negative assurance letter of ▇Faegre Drinker B▇▇▇▇▇ & ▇▇R▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters dated the Closing Time Date or the Option Closing TimeDate, as applicable, covering such matters as the Underwriters shall reasonably request, in each case in the form and substance satisfactory to be agreed by the partiesUnderwriters.
(b) The Underwriters shall have received an opinion and negative assurance letter of M▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as applicable, covering such matters as the Underwriters shall reasonably request, in each case in the form and substance satisfactory to the Underwriters.
(c) The Company shall have furnished to the Representative Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, all dated the Closing Time Date or the Option Closing TimeDate, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct with the same effect as if made at the Closing Time Date or the Option Closing TimeDate, as applicable, and the Company has complied with all the agreements and satisfied all the conditions on its part that are required to be performed or satisfied by it at or prior to the Closing Time Date or the Option Closing TimeDate, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time Date or the Option Closing TimeDate, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus, there has been no change or development involving the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business, that would cause a Material Adverse Effect to occurEffect.
(cd) The Company shall have requested and caused PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Applicable Time, at the Closing Time Date and at each Option Closing TimeDate, lettersan accountant’s “comfort letter” to the underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), dated respectively as of the Execution Applicable Time, the Closing Time Date and each Option Closing TimeDate, in form and substance heretofore approved by the Representative.
(de) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Representative Underwriters shall have objected in writing.
(ef) Prior to the Closing Time Date and each Option Closing TimeDate: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or or, to the Company’s knowledge, threatened, by the Commission, and no suspension of the qualification of the Notes Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time Date shall have been made within the applicable time period prescribed for such filing by such Rule.
(g) [Reserved.]
(h) The Company shall have applied for listing “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Underwriter and certain stockholders, officers and directors of the Notes Company (the “Lock-Up Agreements”) relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Representative on or before the date hereof and shall be in full force and effect on the NYSEClosing Date or the Option Closing Date, as the case may be.
(i) FINRA The Shares to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall not have raised any objection with respect been approved for listing on Nasdaq, subject to the fairness and reasonableness notice of the underwriting terms and arrangementsissuance.
(j) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ec) of this Section 5 delivered at the Closing Time Date or the Option Closing TimeDate, as applicable, from the letter delivered at the Execution Applicable Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Notes Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(l) Prior to the Closing Time Date and each Option Closing TimeDate, the Company shall have furnished to the Representative Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(ml) Subsequent to the Execution Applicable Time, if there are any debt securities of the Company, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(nm) The Notes Shares shall be eligible for clearance and settlement through DTC and at the Closing Time Date and each Option Closing Time Date the Notes Shares shall be cleared and settled through DTC.
(o) The Company shall have furnished to the Representatives a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit B. . If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time Date and each Option Closing TimeDate, as applicable, by the Representative (unless any such conditions have been waived in writing by the Representative on or prior to the Closing Time Date or the Option Closing TimeDate, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇M▇▇▇▇▇, ▇▇▇▇▇ & Bockius B▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇A▇▇▇▇▇ Lung, at the Closing Time Date and each Option Closing TimeDate.
Appears in 1 contract